UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBEIARY 


\ 


Of  elementary  treatises  on  all  the  principal  subjects  of   the  law. 
The  special  features  of  these  boolis  are  as  follows: 

1.  A  succinct  statement  of  leading   principles  In    black-letter  type. 

2.  A   more  extended  commentary,  elucidating  the   principles. 

3.  Notes  and   authorities. 

Published  In  regular  octavo  form,  and  sold  at  the  uniform  price  of 
94.25  per  volume,  including  delivery. 

Bound  In  Standard  Law  Buckram. 


Barrows  on  Negligence. 

Black  on  Construction  and  Interpretation  of  Laws  (2d  EM.). 

Black  on  Constitutional  Law  (3d  Ed.). 

Black   on    Judicial   Precedents. 

Burdick   on   Real   Property. 

Chapin  on  Torts. 

Childs  on  Suretyship  and  Guaranty, 

Clark   on   Contracts   (3d   Ed.). 

Clark  on  Corporations   (3d  Ed.). 

Clark  on  Criminal  Law   (3d  Ed.). 

Clark  on  Criminal  Procedure    (2d  Ed.). 

Cooley    on    Municipal   Corporations. 

Costigan  on   American  Mining  Law. 

Croswell  on  Executors  and  Administrators. 

Dobie  on  Bailments  and  Carriers. 

Eaton  on  Equity. 

Gardner   on    Wills    (2d    Ed.). 

Gllmore  on   Partnership. 

Hale  on  Damages  (2d  Ed.). 

Hopkins    on   Real   Property. 

Hughes   on   Admiralty. 

Hughes  on  Federal  Jurisdiction  and  Procedure  (2d  Ed.). 

Jaggard  on   Torts.     2  Vols. 

McKelvey  on   Evidence   (2d  Ed.). 

Norton   on   Bills  and   Notes   (4th   Ed.). 

Shipiiian    on   Common-Law   Pleading   (2d  Ed.). 

Shipman  on  Equity  Pleading. 

Smith's  Elementary  Law. 

Tiffany   on    Agency. 

Tiffany   on   Banks    and    Banking. 

Tiffany  on  Persons  and  Domestic  Relations  (2d  Ed.). 

Tiffany  on  Sales  (2d  Ed.). 

Vance  on  Insurance. 

Wilson  on  International  Law. 

In  preparation:    Handbooks  of  the  law  on  other  subjects  to  be  an- 
nounced later. 

Published  and  for  sale  by 
WEST  PUBLISHING  CO.,   ST.   PAUL,  MINN. 


C11517- 


HANDBOOK 


OR 


THE  LAW  OF  PERSONS  AND 
DOMESTIC  RELATIONS 


By  WALTER  C.  TIFFANY 


SECOND    EDITION 

By  ROGER  W.  COOLEY 

AUTHOR  OF  "  BRIEFS  ON  THE  LAW  OF  INSURANCE" 
IWSTRDCTOR  W  THE  ST.  PAUL  COLLEGE  OF  LAW  AND  SPECIAL  LECTURER  IN 
LEGAL  BIBLIOGRAPHY 


ST.  PAUL,  MINN. 

WEST  PUBLISHING  CO. 

1909 


C50PTB10HT,     1896, 
BT 

WEST  PUBLISHING  COMPANY, 


COPYBIGHT,    1909, 
BT 

WEST  PUBLISHING  COMPANY. 
[T11T.P.&  D.ItKi-.(2D  Ed.)] 


wof 


PREFACE  TO  SECOND  EDITION. 


In  the  thirteen  years  that  have  elapsed  since  the  first  edition  of  this 
book  appeared,  there  have  been  very  few  changes  in  the  law  of  Per- 
sons and  Domestic  Relations.  Even  in  the  law  of  Master  and  Servant 
there  have  been  no  important  departures  from  the  doctrines  laid 
down  many  years  ago.  The  only  branch  of  the  law  in  which  any 
marked  changes  may  be  observed  is  that  branch  which  deals  with  the 
property  and  contract  rights  of  married  women,  and  these  changes 
are  purely  statutory.  Mr.  Tiffany's  treatment  of  the  general  subject 
was  so  excellent  and  has  called  forth  so  little  criticism  that,  in  the 
preparation  of  the  second  edition,  very  few  changes  have  been  made 
in  the  text.  Some  additions  have  been  made  for  the  purpose  of  round- 
ing out  the  subject,  and  in  a  few  instances  there  has  been  an  alteration 
of  the  arrangement.  The  only  material  additions  are  in  that  portion 
of  the  work  dealing  with  the  separate  property  of  married  women 
and  the  addition  of  a  section  relating  to  the  extraterritorial  effect 
of  divorce — a  subject  that  has  come  into  prominence  in  recent  years. 
The  principal  work  of  the  revisor  has  been  to  incorporate  in  the  notes 
the  later  decisions.  Roger  W.  Cogley. 

St.  Paul,  Minn.,  May  1,  1909 


77HHSf4 


PREFACE  TO  FIRST  EDriTON. 


In  this  book  the  same  general  plan  has  been  followed  as  that  adopted 
in  the  previous  books  of  the  Hornbook  Series.  A  concise  statement 
of  the  law  precedes  each  subdivision  of  the  subject,  and  is  followed 
and  illustrated  by  a  fuller  treatment  in  the  subsidiary  text. 

The  common  law  of  the  domestic  relations,  particularly  the  law 
of  husband  and  wife,  has  been  to  a  great  extent  modified  by  statutes, 
and  in  some  states  almost  entirely  superseded.  These  statutory  chan- 
ges have  been  by  no  means  uniform,  and  there  are  probably  few 
branches  of  the  law  in  which  there  is  to-day  less  uniformity.  In  a 
book  of  this  scope  it  would  be  impossible  to  give  in  detail  the  law  of 
each  state  as  modified  by  statute.  Since  the  common  law  is  still  in 
force  excepting  so  far  as  changed  by  statute,  a  knowledge  of  the 
common,  as  well  as  of  the  statute,  law,  is  necessary,  in  order  to  deter- 
mine what  the  law  is  to-day.  The  plan  followed  has  been,  therefore, 
to  state  the  common-law  rule,  and  then  the  substance  of  such  statutes 
as  have  been  generally  adopted,  with  the  interpretation  of  such  en- 
actments by  the  courts,  leaving  it  to  the  reader  to  ascertain  what  stat- 
utes are  peculiar  to  his  own  state. 

The  original  scope  of  this  book  was  limited  to  the  subjects  of  Hus- 
band and  Wife,  Parent  and  Child,  Infancy,  and  Guardian  and  Ward; 
but  it  has  been  thought  advisable  to  add  Master  and  Servant,  Persons 
Non  Compotes  Mentis,  and  Aliens,  and  these  additions  are  the  work 
of  Mr.  William  L.  Clark,  Jr.  I  am  further  under  great  obligations  to 
Mr.  Clark  for  valuable  assistance  in  other  parts  of  the  book. 

W.  C.  T. 

Mluneapolit^  Minn.,  St-pt  5,  1896. 

(vl) 


TABLE  OF  CONTENTS. 


Part  L 
HUSBAND  AND  WIFE. 


CHAPTER  I. 

MARRIAGE. 

Section  Page 

1-3.     Definition    of    Marriage 4-7 

4.  Essentials    of    Marriage — Classification 7,  8 

5.  Mutual    Consent 8,9 

6-10.     Reality  of  Consent 9-16 

7.  Fraud    9-16 

8.  Duress    10-16 

9.  Mistalje    10-16 

10.  Effect  of  Fraud,  Duress,  or  Mistake 10-16 

11.  Mental  Capacity  of  the  Parties 16 

12.  Insanity  and  Intoxication 16-19 

13.  Nonage    20-23 

14.  Capacity  of  Parties  Otherwise  than  Mentally 23 

15.  Relationship    23-26 

16.  Physical    Incapacity 26,  27 

17.  Civil   Conditions — Race,   etc 27,28 

18.  Prior    Marriage 2H-30 

19-21.     Formalities  In  Celebration — Informal   Marriages 31-38 

22-26.     Annulment  and  Avoidance  of  Marriages 38-42 

27.  Power  of  Legislature  to  Validate  Marriage 43 

28.  Presumption  and  Burden  of  Proof 44— i6 

29.  Construction   of    Statutes 46-48 

SO.     Conflict    of    Laws 4H-52 

TiFr.P.&  D.Rel.(2d  Ed.)  (vii) 


VUi  TABLE   OF    CONTENTS. 


CHAPTER  II. 

RIGHTS   AND   DUTIES   INCIDENT  TO  COVERTURE  IN  GENERAL. 

Section  Page 

81.  Right  to  Cohabitation   and   Intercourse 53-55 

32-33,  Restraint  and  Correction  of  Wife 55-58 

34.  Right  to  Determine  Family  Domicile 58,  59 

35-3G.  Crimes  of  Married  Women 59-02 

37.  Crimes  as  Between  Husband  and  Wife 62-64 

38-^1,  Torts  of  Married  Women 64-73 

42-43.  Torts  as  Between  Husband  and  Wife 73,  74 

44.  Torts  Against  Married  Women 75-79 

45-46.  Actions  for  Enticing,  Harboring,  or  Alienation  of  Affection  79-84 

47.  Action  for  Criminal   Conversation 85-88 


CHAPTER  III. 

RIGHTS  IN  PROPERTY  AS  AFFECTED  BY  COVERTURE. 

48.  Wife's    Earnings 89-92 

49.  Wife's  Personalty  In   Possession 92-95 

60-51.  Wife's   Choses   in   Action 9.5-101 

52.  Administration  of  Wife's  Estate 101-103 

53.  Wife's  Chattels  Real 103 

54.  Wife's  Estates  of  Inheritance — Curtesy 103-106 

55.  Wife's  Estates   for  Life 106 

56.  Property  Acquired  by  Wife  as  Sole  Trader 100,  107 

57.  Wife's  Equitable  Separate  Estate 107 

58.  Wife's   Statutory   Separate  Estate 107,  108 

59.  Wife's  Rights  In  Husband's  Property— Dower  and  Thirds  108,  109 

60.  Estates  by  the  Entirety 109-112 

61.  Community    Property 112-114 


CHAPTER  IV. 

CONTRACTS,  CONVEYANCES,  ETC.,  AND  QUASI  CONTRACTUAL  OBLI- 
GATIONS. 

62.     Contracts    of   Wife 115-119 

63-64.     Wife  as  a  Sole  Trader 120-122 

65-68.     Conveyances,  Sales,  and  Gifts  by  Wife 122-125 

69.     Contracts    of    Husband 125 

70-71.     Contracts  by  Wife  as  Husband's  Agent 126-137 

72.  Husband's  Liability  for  Wife's  Funeral  Expenses 137,138 

73.  Husband's  Liability  for  Wife's  Antenuptial  Debts 138-140 


TABLE  OF    CONTENTS, 


IX 


CHAPTER  V. 

WIFE'S    EQUITABLE   AND    STATUTORY    SEPARATE    ESTATE. 

Page 
Section  -lAT.-iA-i 

74.  Equitable    Separate    Estate i^l  x^o 

75.  Jus    Disponendl ^^^'  ^'^ 

76-78.  Power  to  Charge  by  Contract 144-147 

79.  Statutory   Separate   Estate 14S-155 

80.  Jus    Disponendi ^^^'  ^^^ 

81-83.  Power  to  Charge  by  Contract 156-164 


CHAPTER  VI. 


84. 
85. 
86. 
87. 

88. 
89-90. 
01-92. 


ANTENUPTIAL    AND    POSTNUPTIAL    SETTLEMENTS. 

Antenuptial    Settlements 165-168 

Marriage  as  a  Consideration 16S-172 

Reasonableness  of  Provision  for  Wife 173-174 

Settlements  Based  on  Antenuptial  Agreements 174,175 

Statute   of   Frauds 175-177 

Postnuptial    Settlements 177-181 

As  Against  Creditors  and  Purchasers 181-183 


CHAPTER  VII. 


SEPARATION  AND  DIVORCE. 

93-95.     Agreements  of   Separation 184-187 

96.     Divorce,  or  Judicial  Separation 187, 188 

97-98.     Jurisdiction  to  Grant  Divorce 188-191 

99-104.     Grounds  for  Divorce 191-213 

99.  Adultery    191,192 

100-102.  Cruelty    ti 

.  1  qQ-''07 

103.  Desertion    ^^^  -"' 

104.  Miscellaneous   Other   Grounds 207-213 

1P5-109.     Defenses  in  Suits  for  Divorce 213-220 

105.  Connivance     213-215 

106.  Collusion    2^^'  2^'^ 

107-108.  Condonation    217-220 

109.  Recrimination     — '-^^ 

110.  Extraterritorial   Effect  of  Divorce 226-229 

111.  Legislative    Divorce 229, 230 


XABLB  OF   CONTENTS. 

Part  n. 
PARENT  AND  CHILD. 


CHAPTER  VIII. 

LEGITIMACY,  ILLEGITIMACY,  AND  ADOPTION. 

Section  Page 

112-113.     Legitimacy  of  Children 233-242 

114.  Adoption  of  Cliildreu 242-246 

115.  Status  of  Illegitimate  Children 246-250 

CHAPTER  IX. 

DUTIES  AND  LIABILITIES  OF  PARENTS. 

116.  Parent's  Duty  to  Maintain  Child 251-256 

117.  Maintenance  in  Equity — Allowance  Out  of  Child's  Estate  257,  258 

118.  Parent's  Duty  to  Protect  Child 258 

119.  Parent's  Duty  to  Educate  Child 259 

120.  Contracts  by  Child  as  Parent's  Agent 259,  260 

121.  Parent's  Liability  for  Child's  Torts 2G0-262 

122.  Parent's  Liability  for  Child's  Crimes 262 


CHAPTER  X. 

RIGHTS   OF   PARENTS   AND   OF  CHILDREN. 

123.  Rights  of  Parents  in  General 263 

124.  Parent's  Right  to  Correct  Child 264-267 

125-126.     Custody    of    Children 267-276 

127.  Parent's  Right  to  Child's  Services  and  Earnings 276-279 

128-131.  Emancipation   of  Children 280-286 

132-134.  Action  by  Parent  for  Injuries  to  Child 286-298 

135-137.  Action  by  Parent  for  Seduction  or  Debauching  of  Daughter  299-304 

138-139.  Action  by   Parent  for  Abducting,   Enticing,   or   Harboring 

Child     304, 305 

140.  Parent's  Rights  in  Child's  Property 306,  307 

141.  Gifts,    Conveyances,    and    Contracts   Between    Parent   and 

Child    307-309 

142-143.     Advancements     309, 310 

144.  Duty  of  Child  to  Support  Parent 311 

145.  Domicile  of  Child 311,312 


TABLE   OF    CONTENTS, 

Part  m. 

GUARDIAN  AND  WARD. 


CHAPTER  XI. 

GUARDIANS  DEFINED— SELECTION  AND  APPOINTMENT. 

Section  Page 

146-147.     In    General 315,  316 

148.  Natural    Guardians 316 

149.  Guardians  in   Socage 317, 318 

150.  Testamentary    Guardians 318-320 

151.  Chancery    Guardians 320,321 

152.  Statute    Guardians 321 

153.  Quasi  Guardians,  or  Guardians  by  Estoppel 321,322 

154.  Guardians  of  Persons  Non  Compotes  Mentis 322 

155.  Guardians  Ad  Litem 323 

156-158.     Selection  and  Appointment  of  Guardians  by  Court 323-326 

159.    Jurisdiction  to  Appoint  Guardian 326,327 


CHAPTER  XII. 
RIGHTS,    DUTIES,   AND   LIABILITIES    OF   GUARDIANS. 

160.  Guardian's  Right  to  Custody  of  Ward 328,329 

161,  Guardian's  Right  to  Ward's  Services 329,330 

162-166.     Maintenance  of  Ward 330-336 

163.  Contracts    330-334 

164.  Reimbursement    for   Support 330-334 

165-166.  Use  of  Principal  of  Estate 334-336 

167.     Change  of  Ward's  Domicile  by  Guardian 336-338 

168-179.     Management  of  Ward's  Estate 338-360 

168-169.  Guardianship  as  a  Trust 338-^44 

170.  Acts  in  Excess  of  Authority 344,  345 

171.  Degree  of  Care  Required 345,  346 

172.  Collection  and  Protection  of  Property — Actions 347-350 

173-174.  Investments   350-354 

175.  Care  of  Real   Estate 355 

176-177.  Sale  of  Real  Estate 356-358 

178.  Sale  of  Personal  Property 359 

179.  Power  to  Execute  Instruments 359,  360 

180.  Foreign   Guardians 360,  361 

181-183.     Inventory  and  Accounts 361-363 

184.  Compensation   of   Guardian 3G3,  364 

185.  Settlements  Out  of  Court 364-366 

186.  Gifts  from  Ward  to  Guardian 364-366 


xii 


TABLB  OF  CONTENTS. 


CHAPTER  XIII. 

TERMINATION    OF    GUARDIANSHIP— ENFORCING    GUARDIAN'S 

LIABILITY. 
Section  Page 

1S7.     Termination  of  Guardianship 367-371 

188.     Enforcement  of  Guardian's  Liability 371,  372 

189-191.     Guardians'    Bonds 373-375 


Part  IV 


INFANTS,  PERSONS  NON  COMPOTES 
MENTIS,  AND  ALIENS. 


CHAPTER  XIV. 

INFANTS. 

192.  Infancy  Defined 379,  380 

193.  Custody  and  Protection 380,  381 

194-198.     Privileges  and  Disabilities 381-386 

194.  In   General 381-386 

195.  Capacity  to  Hold  Office 381-386 

196.  Capacity  to  Make  a  Will 381-386 

197.  Capacity  to  Sue  and  Defend 381-386 

198.  Infants  as  Witnesses 381-386 

199-217.     Contracts  of  Infants 386-425 

199.  In   General 386-393 

200-203.  Liability  for  Necessaries 393^00 

204.  Ratification  and  Disaffirmance 400-402 

205-207.  Time  of  Avoidance 403-406 

208-209.  Who  May  Avoid  Contract 406-408 

210-211.  What  Constitutes  Ratification 408-414 

212.  What  Constitutes  Disafllrmance 415,  416 

213.  Extent  of  Ratification  or  Disaffirmance 416,417 

214-215.  Return  of  Consideration 417-421 

210-217.  Effect  of  Ratification  or  Disaffirmance 422-425 

218.     Removal  of  Disabilities 425,  426 

219-220.     Actions  In  Tort  by   Infants 426-429 

221-222.     Liability  of  Infants  for  Torts 430-435 

223-224.     Responsibility  of  Infants  for  Crimes 435-437 


TABLE  OF  CONTENTS. 


Xlll 


CHAPTER   XV. 

PERSONS    NON    COMPOTES    MENTIS    AND    ALIENS. 

Section  Pago 

225-246.     Persons  Non  Ck)mpotes  Mentis 438-463 

225.  In  General 438,  439 

226.  Inquisition  440 

227-228.  Guardianship 441 

•  229.  Custody  and  Support 441,  442 

230-234,  Contracts    442-i50 

231-234.  Ratification  and  Avoidance  of  Contracts 448-450 

235.  Liability  for  Torts 451,452 

23&-239.  Responsibility  for  Crimes 452-456 

240-241.  Capacity  to  Make  a  Will 456-458 

242-246.  Drunken  Persons 458-163 

242-243.  Contracts    458-460 

244.  LlabUity  for  Torts 461 

245.  Responsibility  for  Crimes 461-163 

246.  Capacity  to  Make  a  Will 463 

247-252.    Aliens   464-471 


Part  V. 
MASTER  AND  SERVANT. 


CHAPTER  XVI. 


MASTER  AND  SERVANT. 

253-255.    The  Relation  Defined 475-478 

256.     Statutory   Regulation 478 

257-258.     Creation  of  the  Relation 479-484 

259-261.     Termination  of  the  Relation 485-499 

262-263.     Remedies  for  Breach  of  Contract — Damages 500-503 

264.            In  Equity — Specific  Performance — Injunction 504 

265-271.    Rights,  Duties,  and  Liabilities  Inter  Se 505-510 

272-275.            Master's  Liability  for  Injuries  to  Servant 510-536 

276.  Rights  of  Master  Against  Third  Persons 536-538 

277.  Rights  of  Servant  Against  Third  Persons 539 

278-279.     Master's  Liability  to  Third  Persons 540-549 

280-281.     Servant's  Liability  to  Third  Persons 550,  551 

t 


Part  I. 


HUSBAND  AND  WIFE. 


TIFF.P.&  D.Rel.(2d  E5d.)  (!)• 


HANDBOOK 


ON 


THE  LAW  OF  PERSONS  AND  DOMESTIC 

RELATIONS. 


SECOND  EDITION. 


CHAPTER  I. 
MARRIAGE. 

1-3.  Definition  of  Marriage. 

4.  Essentials  of  Marriage — Classification. 

5.  Mutual  Consent. 
6-10.  Reality  of  Consent. 

7.  Fraud. 

8.  Duress. 

9.  Mistake. 

10.  Effect  of  Fraud,  Duress,  or  Mistake. 

11.  Mental  Capacity  of  the  Parties. 

12.  Insanity  and  intoxication. 

13.  Nonage. 

14.  Capacity  of  Parties  Otherwise  than  Mentally. 

15.  Relationship. 

16.  Physical   Incapacity. 

17.  Civil  Conditions — Race,  etc 

18.  Prior  Marriage. 

10-21.  Formalities    in    Celebration — Informal    Marriagei 

22-26.  Annulment  and  Avoidance  of  Marriages. 

27.  Power  of  Legislature  to  Validate  Marriage. 

28.  Presumption  and  Burden  of  Proof. 

29.  Construction  of  Statutes. 

30.  Conflict  of  Laws. 

TlFr.P.&D.REL.(2DEr>.)  (3) 


MARRIAGE,  (Ch.  1 


DEFINITION   or  MARRIAGE. 

1.  TTie  term  "marriage"  is  used  in  txp^o  senses: 

(a)  To  designa.te  tie  relation  of  a  man  and  a  woman  legally  united 

for  life  as  busband  and  xrife. 

(b)  To  designate  the  act,  as  distinguished  from  the  executory  agree- 

ment to  marry,  by  which  the  parties  enter  into  the  marriage 
relation. 

2.  Marriage,  in  the  sense  of  the  relation  of  husband  and  wife,  is  a 

status,  and  not  a  contract. 

3.  Marriage,  in  the  sense  of  the  act  by  which  the  parties  become  hus- 

band and  wife,  has  been  called  a  contract,  but,  strictly  speak- 
ing, it  is  not  so;  it  is  the  performance  of  their  contract  to 
marry,  resulting  in  a  change   of  status. 

Unfortunately,  the  term  "marriage"  has  been  used  in  two  senses, 
and  this  double  use  of  the  term  has  resulted  in  some  confusion.  In 
one  sense,  it  means  the  marriage  relation;  that  is,  the  status  of  a 
man  and  woman  legally  united  as  husband  and  wife.^  In  another 
sense,  it  means  the  act  or  ceremony  by  which  that  relation  is  as- 
sumed, as  distinguished  from  the  executory  contract  to  marry. ^  It 
is  used  in  the  first  sense  when  it  is  said  that  a  marriage  has  been  dis- 
solved, and  in  the  second  sense  when  it  is  said  that  a  marriage  has 
been  celebrated,   or  has  been   proved. 

Marriage  as  a  Contract. 

It  is  said  by  most  of  the  text-writers,  and  it  has  often  been  said 
by  the  judges,  that  marriage  is  a  "civil  contract" ;  '  but  this  is  not 
true.  Strictly  speaking,  marriage  is  not  a  contract,  in  either  of  the 
senses  in  which  the  term  is  used.*     The  question  has  arisen  in  a 

1  The  essential  feature  of  marriage  is  that  the  relation  can  exist  only  be- 
tween one  man  and  one  woman.  Riddle  v.  Riddle,  26  Utah,  268,  72  Pac.  1081 ; 
Warrender  v.  Warreuder,  2  Clark  &  F.  532. 

3  Noel  V.  Ewing,  9  Ind.  37. 

3  Johnson  v.  Johnson's  Adm'r,  30  Mo,  72,  77  Am.  Dec.  598;  Fornshill  v. 
M!irra.Y,  1  Bland  (Md.)  479,  18  Am.  Dec.  344;  McKinney  v.  Clarke,  2  Swan 
(Tenn.)  321,  58  Am.  Dec.  59;   Barkshire  v.  State,  7  Ind.  389,  65  Am.  Dec.  738. 

4  Andrews  v.  Andrews,  188  U.  S.  14,  30,  23  Sup.  Ct  237,  47  L.  Ed.  366; 
Maynard  v.  Hill,  125  U.  S.  190,  8  Sup.  Ct.  723,  31  L.  Ed.  654;  Sottomayer 
V.  De  Barros.  5  Prob.  Div.  94 ;  Adams  v.  Palmer,  51  Me.  481 ;  Ditson  v.  Dit- 
son,  4  R.  I.  87 ;  ^Yade  v.  Kalbfleisch,  58  N.  Y.  282,  17  Am.  Rep.  250 ;  Moot  v. 
Moot,  37  Hun  (N.  Y.)  288;  Watkins  v.  Watkius,  135  Mass.  83;  Magnire  v. 
Maguire,  7  Dana  (Ky.)  181;    Green  v.  State,  58  Ala.  190,  29  Am.  Rep.  739; 


§§  1-3)  DEFINITION    OF    MARRIAGE.  5 

number  of  cases  where  the  Legislature  has  undertaken  to  grant 
divorces,  or  to  change  the  rights  of  parties  who  have  married.  It 
has  been  contended  that  such  acts  of  the  Legislature  are  unconstitu- 
tional, because  they  impair  the  obligation  of  contracts;  but  the 
courts  have  held  that  marriage  is  not  a  contract,  within  the  meaning 
of  this  clause  of  the  Constitution. »  These  decisions  not  only  hold 
that  the  marriage  relation  is  not  a  contract,  but  they  necessarily 
hold  that  the  ceremony  of  marriage  is  not  a  contract,  for  a  statute 
that  would  impair  the  obligations  of  the  former  would  necessarily 
impair  the  obligations  of  the  latter.  That  neither  marriage,  nor 
the  marriage  relation,  is  a  contract,  would  seem  obvious  when  the 
differences  between  them  are  noticed.  In  a  contract  the  parties  fix 
its  terms,  but  marriage  imposes  its  own  terms.  A  contract  may 
be  terminated  by  mutual  consent,  but  the  marriage  relation  cannot 
be  so  terminated.  An  agreement  to  marry  is  necessary  to  a  valid 
marriage,  but  when  that  agreement  is  carried  out,  by  marrjang,  a 
relation  is  created  between  the  parties  which  they  cannot  change.' 
Unlike  a  contract,  also,  the  marriage  relation  cannot  necessarily  be 
terminated,  even  though  one  of  the  parties  becomes  incapable  of  per- 
forming his  part ;  nor  can  it  be  terminated  by  an  infant  of  marriage- 
able age.^  In  these  and  many  other  respects  it  is  irreconcilable 
with  ideas  of  contract. 

Confusion  has  arisen  from  confounding  the  contract  to  marry  with 
the  execution  or  performance  of  that  contract,  and  with  the  rela- 
tion that  results  from  such  performance.  Where  parties  mutually 
agree  to  marry  at  some  future  time,  there  is  a  contract  to  marry. 
When  they  marry — that  is,  when  they  express  their  mutual  con- 
sent with  the  formalities  required  by  law,  or  when  they  informally 
assume  the  relation — they  do  not  contract,  but  they  perform  their 
contract  to  marry,  just  as  a  conveyance  of  land,  and  payment  there- 
for, is  a  performance  of  a  previous  contract  to  convey,  on  the  one 
side,  and  to  pay,  on  the  other.  When  the  contract  to  marry  is  per- 
formed by  marriage,  a  relation  or  status,  not  a  contract,  results. 
Agreement  is  necessary  to  a  valid  marriage,  and  it  is  for  this  rea- 

Noel  V,  Ewing,  9  Ind.  37;  Magee  v.  Young,  40  Miss.  164,  90  Am.  Dec.  322. 
And  see  Schouler's  Law  of  Domestic  Relations  (1905)  §  13.  Tliis  question  may 
be  a  very  important  one.     See  post,  pp.  150,  229. 

6  See  the  cases  cited  above  in  note  4. 

«  Andrews  v.  Andrews,  188  U.  S.  14,  30,  23  Sup.  Ct  237,  47  L.  Ed.  36a 

T  Post,  p.  20. 


0  MARRIAGE.  (Ch.  1 

son,  no  doubt,  that  writers  and  judges  have  spoken  of  it  as  a  con- 
tract. But  it  must  be  remembered  that  something  more  than  agree- 
ment is  necessary  to  constitute  a  contract.  The  agreement  must  di- 
rectly, and  not  remotely,  contemplate  and  create  a  personal  obli- 
gation, an  obligation  in  personam,  capable  of  enforcement  by  the 
courts  in  an  action  by  one  of  the  parties  against  the  other.  Mar- 
riage neither  directly  contemplates  nor  creates  such  an  obligation. ^ 
It  is  otherwise,  of  course,  with  an  agreement  to  marry.  These  con- 
siderations make  it  clear  that  marriage  cannot,  in  either  sense  of 
the  term,  be  regarded  as  a  contract.  The  marriage  relation  is  a 
status,  and  marriage  is  a  change  of  status.® 

"Marriage  has  been  well  said  to  be  something  more  than  a  con- 
tract, either  religious  or  civil ;  to  be  an  institution."  ^°  "Marriage 
is  a  state  or  relation,  depending  for  its  existence  upon  the  fact  of 
parties  competent  to  contract  the  relation,  and  their  legal  volun- 
tary, present  consent  to  do  so.  with  such  formalities  as  the  law  of 
the  place  requires  for  its  valid  solemnization."  ^^  "When  the  con- 
tracting parties  have  entered  into  the  married  state,  they  have  not 
so  much  entered  into  a  contract  as  into  a  new  relation,  the  rights, 
duties,  and  obligations  of  which  rest,  not  upon  their  agreement, 
but  upon  the  general  law  of  the  state,  statutory  or  common,  which 
defines  and  prescribes  those  rights,  duties,  and  obligations.  They 
are  of  law,  not  of  contract.  It  was  a  contract  that  the  relation 
should  be  established,  but,  being  established,  the  power  of  the  par- 
ties, as  to  its  extent  or  duration,  is  at  an  end.  Their  rights  under 
it  are  determined  by  the  will  of  the  sovereign,  as  evidenced  by  law. 
They  can  neither  be  modified  nor  changed  by  any  agreement  of  par- 
tics."  ^^  "Marriage  is  not  a  contract,  but  one  of  the  domestic  rela- 
tions. In  strictness,  though  formed  by  contract,  it  signifies  the  re- 
lation of  husband  and  wife,  deriving  both  its  rights  and  duties  from 
a  source  higher  than  any  contract  of  which  the  parties  are  capable, 
and,    as   to    these,    uncontrollable    by    any    contract    which    they    can 


8  See  Anson,  Cont.  3;    Clark.  Cont.  12. 

•  Linebaugb  v.  Linebaugh,  137  Cal.  2G,  69  Pac.  G16. 

10  Hyde  V.  Hyde,  L.  R.  1  Prob.  &  Div.  130,  133. 

11  Story,  Confl.  Laws,  §  112a. 

12  Adams  v.  Falmer,  .51  Me.  4S1,  483;  Maynard  v.  Hill,  125  U.  S.  190,  8 
Sup.  Ct.  723.  31  L.  Ed.  0."4 :  Hilton  v.  Roylauce,  25  Utah,  129,  09  Pac  GOO, 
5S  L.  R.  A.  723,  95  Am.  St.  Rep.  S21. 


§  4)  ESSENTIALS   OF  MARRIAGE.  7 

make.     When    formed,    this    relation    is    no   more   a   contract    than 
'fatherhood'  or  'sonship'   is  a  contract."  ^' 

In  many  of  the  states  the  Legislature  has  undertaken  to  aenne  mar- 
riage as  a  "civil  contract" ;  **  but  this  is  for  the  purpose  of  convey- 
ing the  idea  that  mutual  consent  of  the  parties  is  essential,  or  that 
mutual  consent  alone,  without  formal  celebration,  is  sufficient  to 
constitute  marriage,  or  for  the  purpose  of  emphasizing  the  fact  that 
marriage  is  a  civil,  and  not  a  religious,  institution.^**  Such  a  stat- 
ute cannot  have  the  effect  of  making  marriage  a  true  contract. 


ESSENTIALS    OF   MARRIAGE— CEASSIFICATION. 

4.   The  essentials  of  a  valid  marriage  may  be   classified  and  treated 
as  folloxrs: 
(a)    Mutual  consent,  or  agreement,  under  ■wMcli  head  may  he  treated 

(1)  Intention  generally. 

(2)  Reality  of  consent,  or  consent  as  affected  by  fraud,  duress, 

or  error, 
(h)    Parties   capable   of  intelligent  consent,  under  -which  head   may 
be  treated 

(1)  Insanity   and  intoxication. 

(2)  Nonage. 

(c)  Parties    otherwise    capable    of   entering   into  the   marriage   rela- 

tion, under  w^hich  may  be   treated  the   effect  of 

(1)  Relationship     between     the     parties — consanguinity     or     af- 

finity. 

(2)  Physical  incapacity. 

(3)  Civil   conditions. 

(4)  Prior    marriage. 

(d)  Formalities  in  the   celebration  of  marriage,  under  which   head 

may  be  treated  informal  marriages. 

While  marriage,  in  the  sense  of  the  act  or  ceremony  by  which  the 
relation  of  husband  and  wife  is  assumed,  is  no  more  a  real  contract 


18  Ditson  V.  Ditson,  4  R.  I.  87,  101. 

14  See,  for  example,  the  fol!owing  statutes:  2  Mills'  Ann.  St.  Colo.  ISOl, 
§  2988;  Burns'  Ann.  St.  lud.  1901,  §  7289;  Gen.  St.  Kan.  190.5,  §  4194;  Rev. 
Laws  Minn.  1905,  §  3552;  Comp.  St  Neb.  1905,  §  4273;  St.  Wis.  1898,  §  2328. 
In  some  states,  too,  the  statutes  declare  that  marriage  is  a  personal  relation 
arising  out  of  a  civil  contract.  Civ.  Code  Cal.  1906,  §  55;  Civ.  Code  Mont. 
1895,  §  50 ;   Civ.  Code  N.  D.  1905,  §  4032 ;    Civ.  Code  S.  D.  1903,  §  34. 

16  See  Fornshill  v.  Murray,  1  Bland  (Md.)  479,  18  Am.  Dec.  344;  Wade  T. 
Kalbfleisch,  58  N.  Y.  282,  17   Am.   Rep.  250;    Mathewson  v.  Phoenix   Iron 


8  MARRIAGB.  (Ch.  1 

than  is  the  relation  itself,  still  mutual  consent  or  agreement  is  nec- 
essary, and  this  fact  clothes  marriage  with  a  semblance  of  con- 
tract. Marriage  and  contract  have  the  element  of  agreement  in 
common,  and  anything  that  would  exclude  this  element  in  contract 
would  also  exclude  it  in  marriage.  There  are  many  principles, 
therefore,  of  the  law  of  contract,  that  apply  also  in  the  case  of 
marriage.  The  necessity  for  mutual  consent,  including  the  question 
of  reality  of  consent,  or  consent  as  affected  by  fraud,  duress,  or  mis- 
take, gives  rise  to  rules  which  are  also  applicable  to  the  formation 
of  contract.  So,  also,  with  the  question  of  insanity  or  intoxication. 
But  marriage  also  involves  other  essentials  which  have  no  place 
in  the  law  of  contract.  Thus  the  parties  must  be  physically  ca- 
pable; they  must  not  be  related  to  each  other  within  the  degrees 
within  which  marriage  is  prohibited;  there  must  be  no  impediment 
of  civil  condition;  and  the  parties  must  not  be  bound  by  a  prior 
marriage.  In  some  jurisdictions,  also,  certain  formalities  are  pre- 
scribed by  law,  to  be  observed  in  the  celebration  of  marriage;  and, 
if  such  is  the  intent  of  the  law,  these  formalities  must  be  complied 
with.  Contracts  by  an  infant  are  voidable,  but  an  infant  of  a 
certain  age  may  enter  into  a  marriage  that  will  be  absolutely  bind- 
ing on  him.  It  will  be  seen,  therefore,  that  the  essentials  of  mar- 
riage differ  widely  from  the  essentials  of  contract. 


MUTUAL  CONSENT. 

5.   To  constitute  a  valid  marriage,  there  must  be  agreement  or  mutu- 
al consent  to  enter  into  tlie  marriage  relation. 

One  of  the  elements  common  to  both  contract  and  marriage  is  the 
agreement  or  mutual  consent  of  the  parties.  Though  the  marriage 
relation  is  an  institution  over  which,  when  it  has  been  entered  into, 
the  parties  have  little  control,  yet  it  lies  entirely  with  them  whether 
they  shall  assume  that  relation.  Their  agreement  or  mutual  con- 
sent, therefore,  is  essential,^'  and  anything  that  goes  to  show  that 

^'oundry  (0.  G)  20  FecL  281;    Reaves  v.  Reaves,  15  Okl.  240,  82  Pac.  490,  2 
L.  R.  A.  (N.  S.)  353. 

loMcClurg  V.  Terry,  21  N.  J.  Eq.  225;  Clark  v.  Field,  13  Vt  460,  465; 
Roszel  V.  Roszel,  73  Mich.  133,  40  N.  W.  S58,  16  Am.  St.  Rep.  569;  State  v. 
WortLlngham,  23  Minn.  528;  Rundle  v.  Pegram,  49  Miss.  751;  Tartt  v.  Ne- 
^3,   127  Ala.   301,  28  South.  713.     The  consent  need  not  be  espre.ssed  In 


§§  6-10)  REALITY   OF   CONSENT.  9 

there  was  no  real  agreement,  such  as  a  lack  of  intent  to  assume 
the  marriage  relation, ^^  shows  that  there  was  no  valid  marriage. 
Thus  in  McClurg  v.  Terry/'  it  appeared  that  a  man  and  woman  hav- 
ing capacity  to  enter  into  the  marriage  relation  went  through  the 
formalities  required  by  law,  and  were  pronounced  man  and  wife 
by  a  person  who  was  authorized  to  perform  the  marriage  ceremony. 
The  parties,  however,  took  this  step  merely  as  a  joke — not  intend- 
ing it  to  be  a  marriage — and  it  was  therefore  held  that  there  was  no 
valid  marriage. 

REALITY    OF   CONSENT— FRAUD,    DURESS,    AND    MISTAKE. 

6.  The  mutual  consent  wliicli  is  essential  to  a  valid  marriage  must 

be  reaL     There  may  be  no  real  consent,  because  of 

(a)  Fraud. 

(b)  Duress. 

(c)  Mistake. 

7.  FRAUD— Fraud,   to   affect  tbe   validity   of  the  marriage,   must   re- 

late to  some  fact  essential  to  the  marital  relation.  A  mar- 
riage is  not  invalidated  by  false  representations  as  to  rank, 
fortune,  character,  or  health;  nor  by  false  representations  as 
to  chastity,  except  xrhere  the  xroman  'was  pregnant  by  anoth- 
er man  at  the  time  of  the  marriage,  and  the  husband  xras  ig- 
norant of  the  fact,  and  had  not  himself  had  intercourse  ivith 
her.      Deceit  may   invalidate   a  marriage,   if  it  prevented   the 

any  especial  manner  or  by  any  prescribed  form  of  words.  University  of 
Michigan  v.  McGucldn,  62  Neb.  489,  87  N.  W.  180,  57  L.  R.  A.  917,  affirmed 
on  reliearing  64  Neb.  300,  89  N.  W.  778,  57  L.  R.  A.  917.  It  may,  indeed, 
be  implied  from  the  acts  of  the  parties.  Hilton  v.  Roylance,  25  Utah,  129, 
69  Pac.  660,  58  I*  R.  A.  723,  95  Am.  St  Rep.  821.  But  see  Hooper  v.  Mc- 
Caffery,  83  111.  App.  341,  where  It  was  said  that  subsequent  cohabitation, 
while  it  will  give  character  to  words  used  or  acts  done,  will  not  supply  a 
lack  of  consent 

IT  University  of  Michigan  v.  McGuckin,  62  Neb.  4S9,  87  N.  W.  ISO,  57  L. 
R.  A.  917,  affirmed  on  rehearing  64  Neb.  300,  89  N.  W,  778,  57  L.  R.  A.  917; 
Eaton  V.  Eaton,  66  Neb.  676,  92  N.  W.  995,  60  L.  R.  A.  605.  The  intent  may 
be  gathered  from  the  circumstances  attending  the  consent  or  agreement, 
and  mere  mental  reservations  and  the  secret  intent  of  one  of  the  parties 
not  to  consider  the  marriage  binding  are  ineffectual.  Imboden  v.  St  Louis 
Union  Trust  Co.,  Ill  Mo.  App.  220,  86  S.  W.  263. 

18  21  N.  J.  Eq.  225.  And  compare  Barclay  v.  Commonwealth,  116  Ky.  275, 
76  S.  W.  4,  and  Lee  v.  State,  44  Tex.  Cr.  R.  354,  72  S.  W.  1005,  61  L,  R.  A. 
904,  where,  to  the  knowledge  and  intent  of  the  man,  the  marriage  was  a 
sham. 


10  MARRIAGE.  (Ch.  1 

other  party  from  understanding  its  nature,  as  in  cases  ivliere 
advantage  is  taken  by  one  party  of  the  extreme  youth  or  age 
of   the   other. 

8.  DURESS — A  marriage  is  voidable  if  either  party  acted  under  du- 

ress. 

9.  MISTAKE — ^Mistake    as    to   the   nature    and   legal   consequences    of 

the  ceremony,  or  as  to  the  identity  of  the  other  party,  ren- 
ders the  marriage  voidable;  but  a  marriage  is  not  invalidated 
by  mistake  as  to  the  rank,  fortune,  character,  or  health  of  one 
of  the  parties. 

10.  A  marriage  is  voidable   on  the   ground  of  fraud,   duress,  or  mis- 

take, and  not  absolutely  void;  but  it  is  voidable  by  act  of  the 
party,  -without  the  necessity  for  a  decree  of  nullity.  It  can 
be   avoided   only  by  the   party   deceived,   coerced,   or   mistaken. 

Fraud. 

As  in  the  case  of  contracts  generally,  in  order  to  avoid  a  mar- 
riage for  fraud,  the  false  representation  or  concealment  must  affect 
some  material  fact  essential  to  the  marital  relation,^®  or  render- 
ing its  assumption  and  continuance  dangerous  to  health  or  life.-*' 
Thus  it  is  the  general  rule  that  false  representations  as  to  rank,  for- 
tune,  character,  or  health  do  not  invalidate  a  marriage.^^     Wheth- 

18  Crane  v.  Crane,  62  N.  J.  Eq.  21,  49  Atl.  734.  A  false  statement  that  the 
party  had  never  been  previously  married  is  not  jrround  to  avoid  the  mar- 
riage. Boehs  V.  Hanger,  G9  N.  J.  Eq.  10,  59  Atl.  904.  And  see  Donnelly  v. 
Strong,  175  Mass.  157,  55  N.  E.  892.  A  marriage  will  not  be  avoided  on  the 
ground  of  concealment  of  the  wife's  physical  incapacity  to  bear  children, 
when  the  facts  so  far  as  known  to  her  were  stated  and  the  prospective  hus- 
band was  put  in  position  to  acquire  exact  information.  Wendel  v.  Wendel, 
30  App.  Div.  447,  52  N.  Y.  Supp.  72.  See,  also,  Schroter  v.  Schroter,  56  Misc. 
Rep.  69,  106  N.  Y.  Supp.  22. 

20  Lyon  V.  Lyon,  230  111.  306,  82  N.  E.  S50,  13  L.  R.  A.  (N.  S.)  996. 

21  Ewing  V.  Wheatley,  2  Hagg.  Ecc.  175;  Wakefield  v.  Mackay,  1  Hagg. 
Consist.  394;  Wier  v.  Still,  31  Iowa,  107;  Carris  v.  Garris,  24  N.  J.  Eq.  516; 
Reynolds  v.  Reynolds,  3  Allen  (Mass.)  605;  Leavitt  v.  Leavitt,  13  Mich.  456; 
Long  V.  Long,  77  N.  C.  304,  24  Am.  Rep.  449;  Scroggins  v.  Scroggins,  14 
N.  C.  535;  Lewis  v.  Lewis,  44  Mian.  124,  46  N.  W.  323,  9  L.  R.  A.  505,  20 
Am.  St  Rep.  559;  Fisk  v.  Fisk,  12  Misc.  Rep.  466,  34  N.  Y.  Supp.  33.  Contra, 
Keyes  v.  Keyes,  6  Misc.  Rep.  355,  26  N.  Y.  Supp.  910.  In  the  last  case  a 
man  had  represented  himself  to  be  honest  and  industrious,  whereas  he  was 
in  fact  a  professional  thief,  whose  picture  was  in  the  rogue's  gallery;  and 
the  marriage  was  annulled  on  the  ground  of  fraud.  This  case,  however,  is 
against  the  weight  of  authority.  See  Wier  v.  Still,  and  other  cases  cited 
above.  But  in  Di  Lorenzo  v.  Di  Lorenzo,  174  N.  Y.  467,  67  N.  B.  63,  63  L. 
R.  A.  92,  95  Am.  St  Rep.  C09,  where  the  woman,  having  given  birth  to  a 


§§  6-10)  REALITY   OF   CONSENT.  H 

er  this  is  because  these  quaHties  are  not  essentials  of  marriage  ;^2 
or  because  the  law  presumes  the  exercise  of  due  caution  in  a  mat- 
ter of  such  importance,  and  that  these  conditions  are  waived  by  mar- 
rying; ^^  or  because  of  grounds  of  public  policy, — the  cases  are  al- 
most uniform  in  holding  that  fraudulent  representations  in  these  par- 
ticulars cannot  be  relied  upon  to  defeat  an  otherwise  valid  marriage. 
So  far  as  matters  relating  to  health  are  concerned,  the  general 
rule  has,  however,  been  modified,  and  the  doctrine  recognized  that 
the  concealment  of  the  existence  of  a  loathsome  and  dangerous 
disease— dangerous  to  the  other  spouse  and  to  the  offspring  of  the 
union,  if  such  there  should  be— is  a  fraud  rendering  the  marriage 
voidable.2*  The  cases  go  so  far  as  to  hold  that  false  representa- 
tions as  to  previous  chastity  are  not  ground  for  annulling  a  mar- 
riage,  even  though  the  woman  may  have  been  a  common  prosti- 
tute.-' When,  however,  the  woman  is  pregnant  by  another  man 
at  the  time  of  the  marriage,  the  marriage  is  voidable.2« 


child,  represented  to  plaintiff  that  he  was  the  father,  thus  inducing  him 
to  consent  to  marriage  in  order  to  legitimate  the  child,  it  was  held  that 
this  was  a  fraud,  affording  ground  for  annulment.  In  Lewis  v.  Lewis,  44 
Minn.  124,  46  N.  W.  323,  9  L.  R.  A.  505,  20  Am.  St.  Rep.  559,  it  was  held 
that  a  marriage  is  not  voidable  for  fraud  for  concealment  of  the  fact  that 
the  wife  was  at  the  time  a  kleptomaniac. 

22  1  Fraser,  Dom.  Rel.  230;   1  Kent,  Comm.  77. 

2  3  1  Bish.  Mar.,  Div.  &  Sep.  §  4G0;  Wakefield  v.  Mackay,  1  Hagg.  Consist. 
3f)4. 

2  4  Smith  V.  Smith,  171  Mass.  404,  50  N.  E.  933,  41  L.  R.  A.  800,  C.8  Am. 
St.  Rep.  440,  where  the  husband  was  afflicted  with  syphilis  in  an  incurable 
form.  To  the  same  effect,  see  Swenson  v.  Swenson,  178  N.  Y.  54,  70  N.  E. 
120;  Crane  v.  Crane,  62  N.  J.  Eq.  21,  49  Atl.  734;  Anonymous,  21  Misc.  Rep. 
765,  49  N.  Y.  Supp.  331.  But  see  Vondal  v.  Voudal,  175  Mass.  383,  56  N.  E. 
586,  78  Am.  St.  Rep.  502,  where  the  disease  had  not  reached  a  contagious 
stage  at  the  time  of  marriage,  and  the  marriage  had  been  consummated. 

2  5Hedden  v.  Hedden,  21  N.  J.  Eq.  61;  Farr  v.  Farr,  2  MacArthur  (D.  C.) 
35;  Reynolds  v.  Reynolds,  3  Allen  (Mass.)  605;  I^avitt  v.  Leavitt,  13  Mich. 
452;  Wier  v.  Still,  31  Iowa,  107;  Donnelly  v.  Strong,  175  Mass.  157,  .55  N. 
E.  892;  Shrady  v.  Logan,  17  Misc.  Rep.  329,  40  N.  Y.  Supp.  1010,  3  N.  Y. 
Ann.  Cas.  I'JS.  See,  also,  Glean  v.  Glean,  70  App.  Div.  576,  75  N.  Y.  Supp. 
622,  10  N.  Y.  Ann.  Cas.  473,  where  annulment  was  sought  by  the  wife  on  the 
ground  of  the  unchastity  of  the  husband  before  marriage. 

2G  Scott  V.  Shufeldt,  5  Faige  (N.  Y.)  43;  Royuolds  v.  Reynolds,  3  Allen 
(Mass.)  605;  Donovan  v.  Donovan,  9  Allen  (Mass.)  140;  Baker  v.  Baker,  13 
Cal.  87;  Montgomery  v.  Montgomery,  3  Barb.  Ch.  (N.  Y.)  132;  Allen's  Ap- 
peal, 99  Pa.  196,  44  Am.  Rep.  101;    Carris  v.  Carris,  24  N.  J.  Eq.  516;    Sin- 


12  MARRIAGE.  (Ch.  1 

The  courts  have  placed  their  decision,  where  the  case  has  arisen, 
on  the  ground  that  the  ability  to  bear  the  husband  a  child  of  his 
loins  is  an  essential  of  marriage,  and  that  a  pregnant  woman  is 
not  able  to  carry  out  the  agreement  in  this  essential  particular." 
In  order  that  the  husband  may  be  entitled  to  avoid  the  marriage  on 
the  ground  of  the  wife's  pregnancy  by  another  man  at  the  time 
of  the  marriage,  he  must  have  been  ignorant  of  the  fact;  for  oth- 
erwise there  is  no  fraud,  nor  failure  to  consent. ^^  Express  denials 
by  the  woman,  or  overt  acts  of  concealment,  are  not  necessary. 
It  is  sufficient  if  her  conduct  was  such  that  a  reasonably  cautious 
person  might  be  misled.'^"  If  the  husband  had  himself  had  ante- 
nuptial connection  with  the  wife,  he  must  be  regarded  as  having 
been  put  upon  his  guard  as  to  her  chastity,  and  he  will  not  be  per- 
mitted to  say  that  he  was  ignorant  of  her  pregnancy  by  another 
man  at  the  time  of  the  marriage. '° 

When  consent  is  obtained  by  deceit,  under  such  circumstances 
that  the  nature  of  the  marriage  is  not  understood,  the  marriage  may 
be  avoided.  Such  cases  arise  where  one  of  the  parties  takes  advan- 
tage of  the  extreme  youth  or  age  of  the  other.** 


Clair  V.  Sinclair,  57  N.  J.  Eq.  222,  40  Atl.  679;  Ritter  v.  Ritter,  5  Blackf. 
(Ind.)  SI;  Frith  v.  Frith,  18  Ga.  273,  63  Am.  Dec.  289;  Harrison  v.  Harrison, 
94  Mich.  559,  54  N.  W.  275,  34  Am.  St.  Rep.  364.  See  Long  v.  Long,  77  N. 
C.  304,  24  Am.  Rep.  449. 

2  7  In  1  Bish.  Mar.,  Div.  &  Sep.  §  486,  the  author  has  pointed  out  that  this 
Is  inconsistent  with  the  position  taken  by  the  courts  in  considering  the  dis- 
ability of  impotence,  where  the  law  is  settled  that  copula,  not  fruitfulness, 
is  the  test,  and  that  barrenness  Is  no  ground  for  nullity.     Post,  p.  126. 

28FOSS  V.  Foss,  12  Allen  (Mass.)  26;  Crehore  v.  Crehore,  97  Mass.  330,  9a 
Am.  Dec.  9S;  Butler  v.  Eschleman,  18  III.  44;  Berry  v.  Bakeman,  44  Me.  164. 
And  see  Steele  v.  Steele,  96  Ky.  382,  29  S.  W.  17. 

2  9  Donovan  v.  Donovan,  9  Allen  (Mass.)  140. 

8  0  Seilheimer  v.  Seilheimer,  40  N.  J.  Eq.  412,  2  Atl.  376;  Crehore  v.  Cre- 
hore, 97  Mass.  330,  93  Am.  Dec.  98;  Foss  v.  Foss,  12  Allen  (Mass.)  26;  Franke 
V.  Franke  (Cal.)  31  Pac.  571,  18  L.  R.  A.  375;  Tait  v.  Tait,  3  Misc.  Rep.  218, 
23  N.  Y.  Supp.  597. '  But  see  Moss  v.  Moss,  24  N.  C.  56. 

81  Harford  v.  Morris,  2  Hagg.  Consist.  423;  Browning  v.  Reane,  2  Phlllim. 
Ecc.  70 ;  Rex  v.  Wakefield,  2  Lewin,  Cr.  Cas.  279 ;  Hull  v.  Hull,  5  Eng.  Law 
&  Eq.  589;  Clark  v.  Field,  13  Vt  460;  Gillett  v.  Gillett,  78  Mich.  184,  43  N. 
W.  1101 ;  Lyndon  v.  Lyndon,  69  111.  43;  Robertson  v.  Cole,  12  Tex.  356;  Moot 
V.  Moot,  37  Hun  (N.  Y.)  288.  In  Gillett  v.  Gillett,  supra,  it  appeared  that 
complainant,  a  man  of  75,  blind,  more  or  less  deaf,  and  otherwise  broken, 


§§    6-10)  EEALITY  OF  C50IfSENT.  13 

Duress. 

A  marriage  under  duress  or  compulsion  is  without  the  consent 
necessary  to  its  validity,  and  may  be  avoided.''  It  has  been  held 
that  the  compulsion,  to  avoid  the  marriage,  must  cause  fear  of 
bodily  harm,^^  but  this  view  cannot  be  sustained.  The  better  opin- 
ion is  that,  if  either  party  is  in  a  state  of  mental  incompetency  to 
resist  pressure  improperly  brought  to  bear,  there  is  no  legal  con- 
sent." In  Scott  V.  Sebright  2'*  the  duress  consisted  in  threatening 
one  in  financial  distress  with  exposure,  and  the  court  held  that, 
inasmuch  as  this  resulted  in  depriving  the  party  of  her  free  will, 
there  was  no  real  consent,  and  the  marriage  was  annulled.  So 
where  a  man  is  illegally  or  maliciously,  and  without  probable  cause, 
arrested  for  bastardy  or  seduction,  and  marries  the  complainant 
to  avoid  imprisonment,  it  is  held  that  he  acts  under  such  duress  as 
will  avoid  the  marriage ;  and  the  same  is  true  in  other  cases  of  illegal 
arrest.^^  If,  however,  an  arrest,  or  threatened  arrest,  for  bastardy 
or  seduction,  is  valid,  a  marriage  to  escape  arrest  or  punishment  is 
not  under  duress,  for  there  can  be  no  duress  in  compelling  a  man 


who  had  Just  received  a  liberal  pension,  with  a  large  amount  of  arrears, 
was  Induced,  by  putting  him  under  the  influence  of  liquors,  and  probably  of 
drugs,  to  marry  defendant,  a  woman  less  than  half  his  age,  who  had  a 
young  child,  and  with  whom  he  was  very  slightly  acquainted,  and  for  whom 
he  entertained  no  attachment  It  was  held  that  the  marriage  was  properly 
annulled. 

82  Scott  V.  Sebright,  12  Prob.  Div.  21;  Marsh  v.  Whittington,  88  Miss.  400, 
40  South.  326;  Shoro  v.  Shoro,  60  Vt.  268,  14  Atl.  177,  6  Am.  St.  Rep.  118; 
Willard  v.  Willard,  6  Baxt.  (Tenn.)  297,  32  Am.  Rep.  529 ;  Bassett  v.  Bassett, 
9  Bush  (Ky.)  696;  Anderson  v.  Anderson,  74  Hun,  56,  26  N.  Y.  Supp.  492. 
That  a  marriage  will  not  be  annulled  on  the  ground  of  duress,  unless  it  is 
shown  that  the  other  party  caused  the  duress,  or  knowingly  used  it  or 
availed  himself  of  it  to  procure  the  marriage,  see  Sherman  v.  Sherman  (Com. 
PI.)  20  N.  Y.  Supp.  414.  But  see  Marks  v.  Grume,  29  S.  W.  436,  16  Ky.  Law 
Rep.  707. 

3  3  Ayl.  Par.  362;    Stevenson  v.  Stevenson,  7  Phila.  (Pa.)  386. 

34  Scott  V.  Sebright,  12  Prob.  Div.  21;  Rex  v.  Wakefield,  39  Am.  Reg.  316; 
Harford  v.  Morris,  2  Hagg.  Consist.  423 ;  Willard  v.  Willard,  6  Baxt.  (Tenn.) 
297,  32  Am.  Rep.  529;   Lyndon  v.  Lyndon,  69  111.  43. 

SB  12  Prob.  Div.  21. 

36  Reg.  V.  Orgill,  9  Car.  &  P.  80;  Shoro  v.  Shoro,  60  Vt.  268,  14  Atl.  177, 
6  Am.  St.  Rep.  118 ;  Soule  v.  Bonney,  37  Me.  128 ;  Bassett  v.  Bassett,  9  Bush 
(Ky.)  696;   Barton's  Lessee  v.  Morris'  Heirs,  15  Ohio,  408. 


14  MARRIAGE.  (Ch.  1 

to  perform  a  legal  duty.'^     Threats  or  force  which  do  not  coerce 
are  not  duress.** 

Mistake. 

As  false  and  fraudulent  representations  as  to  rank,  fortune,  char- 
acter,  or   health   are   no   ground    for   annulling   a   marriage   that    is 

sr  Jackson  v.  Winne,  7  Wend.  (N.  Y.)  47,  22  Am.  Dec.  5G3;  Ilonnett  v.  Hon- 
nett,  33  Ark.  15G.  34  Am.  Rep.  39;  Marvin  v.  Marvin,  52  Ark.  425,  12  S.  W. 
S75,  20  Am.  St.  Rep.  191;  Blankenmiester  v.  Blankenmiester,  106  Mo.  App. 
300,  SO  S.  W.  706;  Sickles  v,  Carson,  26  N.  J.  Eq.  440;  Copeland  v.  Copeland 
(Va.)  21  S.  E.  241;  Williams  v.  State,  44  Ala.  24;  State  v.  Davis,  79  N.  C. 
603;  Merrell  v.  Moore  (Tex.  Civ.  App.)  104  S.  W.  514;  Johns  v.  Johns,  44 
Tex.  40;  Medrano  v.  State,  32  Tex.  Cr.  R.  214,  22  S.  W.  6S4,  40  Am.  St.  Rep. 
775;  Lacoste  v.  Guidroz,  47  La.  Ann.  295,  16  South.  836.  In  Marvin  v.  Mar- 
vin, supra,  it  was  held  that  marriage  cannot  be  avoided  on  the  ground  of 
duress  Avhere  a  man  is  lawfully  arrested  on  process  for  seduction,  and  mar- 
ries the  woman  to  procure  his  discharge,  and  that  the  fact  that  he  subse- 
quently discovers  that  he  could  not  have  been  convicted  will  not  alter  the 
case,  if  the  prosecution  was  on  probable  cause,  and  not  from  malice  merely. 
But  abuse  of  lawful  process  may  constitute  duress.  Thus,  where  an  inex- 
perienced boy  of  18  was  arrested  on  the  charge  of  bastardy,  and  while  under 
arrest  was  advised  by  the  justice  to  marry  the  female  making  the  charge, 
and,  notwithstanding  his  assertions  of  innocence,  was  threatened  with  a  con- 
viction and  confinement  in  the  penitentiary,  and  the  boy  married  the  woman 
to  avoid  such  punishment,  the  marriage  was  annulled  on  the  ground  of 
duress.     Smith  v.  Smith,  51  Mich.  607,  17  N.  W.  76. 

88  In  a  suit  in  England  by  a  woman  to  annul  a  marriage,  it  appeared  that 
the  parties  were  Americans  and  cousins.  Respondent  had  made  an  offer  of 
marriage  to  the  petitioner,  which  she  had  refused.  On  a  Sunday,  he  being 
then  under  21  and  she  24  years  of  age,  under  the  pretense  of  going  to  an 
afternoon  service  at  a  church,  he  took  her  to  another  church,  and  outside 
the  church  said  to  her  suddenly,  "You  must  come  into  the  church  and  marry 
me,  or  I  will  blow  ray  brains  out,  and  you  will  be  responsible."  She  testi- 
fied that  she  was  so  ahirmed  that  she  did  not  know  what  she  was  doing,  and 
went  into  the  church,  where  the  ceremony  of  marriage  was  performed,  and 
she  signed  the  register.  Respondent  had  previously  obtained  a  license,  on  a 
false  declaration  as  to  his  own  age  and  as  to  the  petitioner's  residence,  and 
had  made  arrangements  at  the  church  lor  the  marriage  to  be  performed  that 
day.  The  vicar  who  performed  the  ceremony  stated  that  the  petitioner  went 
through  it  without  showing  any  signs  of  miwillingness,  repeated  the  re- 
sponses in  an  audible  tone,  and  signed  the  register  in  a  clear,  firm  hand. 
The  marriage  was  never  consummated,  and  the  parties  never  saw  each  other 
afterwards,  though  they  corresponded,  but  always  on  the  footing  of  cousins, 
and  not  as  husband  and  wife.  Petitioner  never  told  her  parents  or  friends 
of  the  marriage,  because,  as  she  said,  she  did  not  regard  it  as  binding.  Re- 
spondent, who  did  not  appear  in  the  suit,  admitted  that  he  had  only  married 


§§    6-10)  KEALITY    OF   CONSENT.  15 

Otherwise  valid,'®  it  is  clear  that  a  mistake  as  to  these  particulars 
is  not  sufficient  to  invalidate  it.  These  are  not  essentials  of  the 
marriage.  If,  however,  a  mistake  is  of  such  a  nature  as  to  prevent 
the  party  from  understanding  the  nature  of  the  marriage,  it  must 
necessarily  avoid  it;  for  there  can,  in  such  a  case,  be  no  mutual  con- 
sent. If  a  person  should  intend  to  marry  one  person,  for  instance, 
and  by  mistake  should  marry  another,  there  would  be  no  consent, 
and  therefore  no  valid  marriage.*" 

There  is  no  mistake  in  identity,  which  will  afford  ground  to  avoid 
the  marriage,  if  there  has  merely  been  an  assumption  of  a  false  name 
'    without  false  personation.*^ 

Void  or  voidable — Ratification. 

Marriages  induced  by  fraud  or  duress,  or  entered  into  under  mistake 
are  sometimes  said  to  be  void,  and  not  merely  voidable ;  but  this  is 
not  true.  They  are  not  absolutely  void,  but  voidable  at  the  option 
of  the  party  deceived,  coerced,  or  mistaken.  If  that  party  chooses 
to  avoid  the  marriage,  he  or  she  may  do  so,  and  thereby  render  it 
void  ab  initio;  and  no  suit  for  nullity  is  necessary.  The  other  party 
clearly  cannot  avoid  the  marriage,  for  he  would  not  be  permitted 
to  set  up  his  own  fraud  or  wrong  to  defeat  it,  and  he  could  not  set 
up  a  mistake  on  the  part  of  the  other  party,  of  which  the  latter  did 
not  complain.*^  If  the  party  coerced  or  deceived — and  it  would 
seem  true,  also,  in  the  case  of  mistake — recognizes  the  marriage  as 
valid,  and  cohabits  with  the  other  party,  after  discovery  of  the 
fraud,   or  when  no  longer   under  the   duress,  the   marriage   cannot 

petitioner  for  lier  money,  and  that  he  did  not  care  for  her.  There  was  evi- 
dence that  the  petitioner  was  of  a  weak,  impressionable  character,  with  not 
much  power  of  resistance  to  a  stronger  will,  but  that  she  was  not  particu- 
larly disposed  to  fall  into  a  "hysterical  state,"  in  the  medical  sense  of  the 
term.  It  was  held  that  the  facts  were  insufficient  to  rebut  the  presumption 
of  consent,  that  the  marriage  was  valid,  and  that  the  suit  must  be  dismissed. 
Cooper  V.  Crane  [1891]  Prob.  Div.  300. 

8  8  Ante,  p.  10.  As  to  error,  see  2  Kent,  Comm.  77;  Benton  v.  Benton,  1 
Day  (Conn.)  Ill ;    Fielding's  Case,  Burke,  Cel.  Trials,  63,  78. 

*o  Meyer  v.  Meyer,  7  Ohio  Dec.  027;  Reg.  v.  Millis,  10  Clark  &  F.  534,  785; 
Rex  y.  Inhabitants  of  Bui-ton-upon-Trent,  3  Maule  &  S.  537 ;  Stayte  v.  Far- 
quharson,  3  Addams,  Ecc.  282.  See,  also,  Delpit  v.  Young,  51  La.  Ann.  923, 
25  South.  547,  holding  that  error  as  to  the  chastity  of  a  wife  before  her  mar- 
riage is  not  a  "mistake  in  the  person,"  within  Rev.  Civ.  Code,  arts,  91,  110. 

*i  Meyer  v.  Meyer,  7  Ohio  Dee.  627. 

*«  Farley  v.  Farley,  94  Ala.  501,  10  South.  640.  33  Am.  St  Rep.  141. 


16  MARRIAGE.  (Ch.  1 

afterwards  be  avoided.'''  Fraud,  duress,  or  mistake  cannot  be  set  up 
by  third  persons  to  defeat  the  marriage.**  These  considerations  are 
sufficient  to  show  that  the  marriage  is  not  void,  but  voidable  only. 
No  decree  of  nullity,  however,  is  necessary,  unless  required  by  stat- 
ute. The  marriage,  as  already  stated,  is  sufficiently  avoided  if  it 
is  repudiated  on  discovery  of  the  fraud  or  mistake,  or  when  released 
from  the  duress. 

MENTAL  CAPACITY  OF  THE  PARTIES. 

11.  To   constitnte  a  valid  maniage,  the  parties  must  be   capable   of 

intelligently  consenting.  They  may  be  incapable  of  intelli- 
gent  consent  by  reason   of 

(a)  Insanity  or  intoxication. 

(b)  Nonage. 

SAME— INSANITY  AND  INTOXICATION. 

12.  A  marriage  is  void,  in  the  absence  of  a  statnte,  if  either  party, 

by  reason  of  defect  or  disease  of  the  mind,  xras  incapable  of 
intelligently  consenting.  The  parties  must  have  been  men- 
tally capable  of  understanding  the  nature  and  consequences 
of  marriage.  The  same  rule  applies  ivhere  a  party  is  drunk 
at  the  time  of  the  marriage.  In  most  states,  by  statute,  such 
marriages  are  declared  voidable,  and  not  void;  and  in  some 
states  they  are  held  voidable  only,  independently  of  any  stat- 
ute. 

Insanity. 

Where  by  reason  of  defect  of  the  mind,  as  in  case  of  idiocy,  or  dis- 
ease of  the  mind,  as  in  case  of  lunacy,  a  person  has  not  sufficient 

*3  Schwartz  v.  Schwartz,  29  111.  App.  51G;  Steimer  v.  Steimer,  37  Misc. 
Rep.  26,  74  N.  Y.  Siipp.  714;  Leavitt  v.  Leavitt,  13  Mich.  452;  Hampstead 
V.  Plaistow,  49  N.  H.  84 ;  Scott  v.  Shufeldt,  5  Paige  (N.  Y.)  43.  In  Sdiwartz 
V.  Schwartz,  supra,  a  man  sought  to  avoid  a  suit  by  a  woman  for  separate 
mainteuance  by  showing  that  his  marriage  was  procured  by  duress  of  im- 
prisonment for  seduction  under  promise  of  marriage.  It  was  held  that  his 
claim  could  not  be  sustained,  even  though  the  arrest  was  unlawful,  where 
the  evidence  showed  that  after  the  marriage  he  approved  and  ratified  it,  and 
never  denied  its  validity  until  the  suit  for  separate  maintenance  was  brought. 
There  is  no  ratification  of  a  marriage  invalidated  by  duress  by  subsequent 
cohabitation  submitted  to  while  the  duress  is  still  operative.  Avakian  v. 
Avakian,  69  N.  J.  Eq.  89,  60  Atl.  521. 

*4  McKlnney  v.  Clarke,  2  Swan  (Tenn.)  321,  58  Am.  Dec.  59 ;  Farley  v.  Far- 
ley, 94  Ala.  501,  10  South.  646,  33  Am.  St.  Rep.  141.     "If  a  marriage  may  be 


§    12)  MENTAL   CAPACITY    OF   THE    PARTIES.  17 

mental  capacity  to  give  an  intelligent  consent,  he  or  she  cannot 
enter  into  a  valid  marriage,  for  there  can  be  no  real  consent.**^ 
And  this  is  true,  though  the  insanity  be  only  temporary,  the  per- 
son generally  being  sane.*«  What  degree  of  mental  defect  or  dis- 
ease is  sufificient  to  invalidate  a  marriage  is  a  question  as  to  which 
the  authorities  are  somewhat  at  variance.  The  rule  generally  laid 
down  is  that  the  party  must  be  able  to  understand  the  nature  of 
marriage,  and  its  consequences.*^  This  makes  the  test  whether 
there  is  sufficient  mental  capacity  to  give  an  intelligent  consent.  "If 
the  incapacity  be  such  that  the  party  be  incapable  of  understand- 
ing the  nature  of  the  contract  itself,  and  incapable,  from  mental  im- 
becility, to  take  care  of  his  or  her  own  person  or  property,  such 
person  cannot  dispose  of  his  or  her  own  person  and  property  by 
the  matrimonial  contract,  any  more  than  by  any  other  contract."  ** 
Mere  mental  weakness,  if  it  does  not  deprive  the  party  of  capacity  to 
understand  and  appreciate  the  consequences  of  the  step  he  is  taking, 
does  not  affect  the  validity  of  a  marriage.*^  Nor  is  its  validity  affected 
by  insanity  or  insane  delusions  or  impulses  on  other  subjects.'**'  As 
was  said  in  a  case  in  which  it  was  sought  to  annul  a  marriage  on  the 

annulled  for  fraud,  It  must  be  such  a  fraud  as  operates  upon  one  or  the  other 
of  the  immediate  parties  to  the  contract,  and  has  the  legal  effect  of  vitiating 
the  contract  between  the  parties  ab  initio.  But,  as  respects  strangers,  fraud 
cannot  be  predicated  of  a  contract  which  the  immediate  parties  thereto  may 
lawfully  enter  into,  which  no  principle  of  municipal  law  forbids,  or  can  re- 
strain the  consummation  of."     McKinney  v.  Clarke,  supra. 

4  0  Foster  v.  Means,  Speer,  Eq.  (S.  C.)  569,  42  Am.  Dec.  332;  True  v.  Ran- 
ney,  21  N.  H.  52,  53  Am.  Dec.  164;  Inhabitants  of  Middleborough  v.  Inhab- 
itants of  Rochester,  12  Mass.  364 ;    and  cases  hereafter  cited. 

4  6  Parker  v.  Parker,  6  Eng.  Ecc.  R.  165. 

47  Browning  v.  Reane,  2  Phillim.  Ecc.  70;  Chapline  v.  Stone,  77  Mo.  App. 
523;  True  v.  Ranney,  21  N.  H.  52,  53  Am.  Dec.  164;  Inhabitants  of  Middle- 
borough  V.  Inhabitants  of  Rochester,  12  Mass;.  363 ;  Anon.,  4  Pick.  (Mass.)  32; 
Inhabitants  of  Atkinson  v.  Inhabitants  of  Medford,  46  Me.  510;  Ward  v. 
Dulaney,  23  Miss.  410;  Cole  v.  Cole,  5  Sueed  (Tenn.)  57,  70  Am.  Dec,  275; 
McElroy's  Case,  6  Watts  &  S.  (Pa.)  451;  Lewis  v.  Lewis,  44  Minn.  124,  46 
N.  W.  323,  9  L.  R.  A  505,  20  Am.  St.  Rep.  559 ;  Pyott  v.  Pyott,  191  III.  280, 
61  N.  E.  88,  affirming  90  111.  App.  210. 

4  8  Browning  v.  Reane,  2  Phillim.  Ecc.  70. 

40  2  Kent,  Comm.  76;  Browning  v.  Reane,  2  Phillim.  Ecc.  70;  Portsmouth 
V.  Portsmouth,  1  Hagg.  Ecc.  355;  Kern  v.  Kern,  51  N.  J.  Eq.  574,  26  Atl.  837; 
Aldrich  v.  Steen,  71  Neb.  33,  98  N.  W.  445,  judgment  modified  on  rehearing 
71  Neb.  33,  100  N.  W.  311. 

50  2  Kent,  Comm.  76;    Portsmouth  v.  Portsmouth,  1  Hagg.  Ecc.  355. 

TIFF.P.&  D.Rel.(2d  Ed.)— 2 


18  MARRIAGE.  (Ch.  1 

ground  that  the  woman  was  a  kleptomaniac:  "It  was  not  proved, 
nor  is  it  found  by  the  court,  that  she  was  not  otherwise  sane,  or  that 
her  mind  was  so  affected  by  this  peculiar  propensity  as  to  be  inca- 
pable of  understanding  or  assenting  to  the  marriage  contract.  Wheth- 
er the  subjection  of  the  will  to  some  vice  or  uncontrollable  impulse, 
appetite,  passion,  or  propensity  be  attributed  to  disease,  and  be 
considered  a  species  of  insanity,  or  not,  yet,  as  long  as  the  under- 
standing and  reason  remain  so  far  unaffected  and  unclouded  that 
the  afflicted  person  is  cognizant  of  the  nature  and  obligations  of  a 
contract  entered  into  by  him  or  her  with  another,  the  case  is  not 
one  authorizing  a  decree  avoiding  the  contract.  Any  other  rule 
would  open  the  door  to  great  abuses."  °^ 

The  insanity  must  exist  at  the  time  of  the  marriage,  to  avoid  it, 
neither  prior  nor  subsequent  insanity  being  sufficient.^^  Nor  are 
both  prior  and  subsequent  insanity  sufficient,  if  the  marriage  took 
place  in  a  lucid  interval.'*^  As  said  by  the  Illinois  court:  "It  would 
be  a  harsh  rule  indeed  that  would  permit  a  man  who  has  married 
a  woman  who  later  in  life  becomes  insane  to  put  her  away  on 
account  of  her  inexpressibly  sad  misfortune.  It  is  to  the  credit  of 
our  common  humanity  that  the're  cannot  be  found,  in  all  the  range 
of  judicial  proceedings,  a  single  case  that  holds  that  insanity  is  or 
could  be  a  cause   for  divorce."  "* 

Intoxicatioji. 

Intoxication  of  a  person  at  the  time  of  his  or  her  marriage  avoids 
it  for  the  same  reason  that  insanity  avoids  it — because  there  is  no 
real  consent. °°  The  intoxication,  however,  must  be  so  excessive  as 
to    prevent    the    party    from   giving   an    intelligent    consent.      If   he 

01  Lewis  V.  Lewis,  44  Minn.  124,  46  N.  W.  323,  9  L.  R.  A.  505,  20  Am.  St. 
Rep.  5.")9. 

5  2  Turner  v.  Meyers,  1  Hagg.  Consist.  414;  Pamell  v.  Parnell,  2  Hagg. 
Consist.  IGO;  Banlier  v.  Banlier,  63  N.  Y.  409;  Nonnemacher  v.  Nonnemacher, 
159  Pa.  634,  28  Atl.  439;  Smith  v.  Smitli,  47  Miss.  211;  Hamalier  v.  Ha- 
maker,  18  111.  137;  Lloyd  v.  Lloyd,  66  III.  87;  Wertz  v.  Wertz,  43  Iowa,  534; 
Baker  v.  Baker,  82  Ind.  146. 

B3  Turner  v.  Meyers,  1  Hagg.  Consist.  414;  Parker  v.  Parker,  6  Eng.  Ece. 
R.  165;  Smith  v.  Smith,  47  Miss.  211;  Banker  v.  Banker,  63  N.  Y.  409;  Non- 
nemacher V.  Nonnemacher,  159  Pa.  634,  28  Atl.  439. 

84  Lloyd  V.  Lloyd,  66  111.  87.  In  a  very  few  states  It  has  been  made  a 
ground  for  divorce. 

6  5  Barber  v.  People,  203  111.  543,  68  N.  E.  93;  Gillett  v.  Gillett,  78  Mich. 
184,  43  N.  W.  1101;  Prine  v.  Prine,  36  Fla.  676,  18  South.  781,  34  L.  R.  A. 


§    12)  MENTAL   CAPACITY    OF   THE   PARTIES.  19 

understands  the  nature  and  consequences  of  his  act,  the  fact  that 
he  is  under  the  influence  of  liquor  will  not  avail  to  avoid  the  mar- 
riage."' 

Void  or  voidable — Ratification. 

Some  of  the  authorities  hold  that  insanity  renders  a  marriage 
voidable,  and  not  void;  that  a  person  on  regaining  his  reason,  even 
temporarily,  may  affirm  a  marriage  celebrated  while  he  was  insane, 
and  thereby  render  it  absolutely  binding."  And  there  are  authori- 
ties to  the  effect  that,  if  the  other  party  knew  he  was  marrying  an 
insane  person,  he  cannot  avoid  the  marriage."*  This  is  the  proper 
view,  but  it  must  be  conceded  that  by  the  weight  of  authority,  in 
the  absence  of  a  statute  providing  otherwise,  a  marriage  by  a  lu- 
natic or  idiot  or  drunken  person  is  not  merely  voidable,  but  abso- 
lutely void,  and  therefore  incapable  of  ratification,  or  of  having  any 
effect  whatever."^  Perhaps  in  most  states  this  rule  has  been  chang- 
ed by  statute,  and  such  marriages  are  made  voidable  only,  and  not 
void.^° 

87;  Clement  v.  Mattison,  3  Rich.  Law  (S.  C.)  93.  And  see,  as  to  contracts 
generally,  2  Kent,  Comm.  451;    Clark,  Cont.  p.  274. 

5  6Prine  v.  Prine,  36  Fla.  676,  18  South.  781,  34  L.  R.  A.  87;  Scott  v. 
Paqnet,  L.  R.  1  P.  C.  582. 

5  7  Dwight,  Pers.  &  Pers.  Prop.  143;  Cole  v.  Cole,  5  Sneed  (Tenn.)  57,  70 
Am.  Dec.  275;  Wiser  v.  Lockwood's  Estate,  42  Vt.  720;  State  v.  Setzer,  97 
N.  C.  252,  1  S.  E.  558,  2  Am.  St.  Rep.  290.  Some  hold  the  marriage  void  until 
it  is  ratified,  Cole  v.  Cole,  supra ;  while  others  hold  it  valid  until  it  is  avoid- 
ed, Wiser  v.  Lockwood's  Estate,  supra. 

5  8  Hancock  v.  Peaty,  L.  R.  1  Prob.  &  Div.  335,  341. 

5  9  Schouler,  Dom.  Rel.  §  18;  Inhabitants  of  Winslow  v.  Inhabitants  of 
Troy,  97  Me.  130,  53  Atl.  1008 ;  Sims  v.  Sims,  121  N.  C.  297,  28  S.  B.  407,  40 
L.  R.  A.  737,  61  Am.  St.  Rep.  665;  Inhabitants  of  Middleborough  v.  Inhab- 
itants of  Rochester,  12  Mass.  363;  Foster  v.  Means,  Speer,  Eq.  (S.  C.)  569, 
42  Am.  Dec.  332;  Inhabitants  of  Unity  v.  Inhabitants  of  Belgrade,  76  Me. 
419;  Crump  v.  Morgan,  38  N.  C.  91,  40  Am.  Dec.  447;  Rawdon  v.  Rawdon, 
28  Ala.  505;  Jenkins  v.  Jenkins'  Heirs,  2  Dana  (Ky.)  102.  26  Am.  Dec.  437; 
Keyes  v.  Keyes,  22  N.  H.  553;  Ward  v.  Dulaney,  23  Miss.  410.  But  see 
Gross  V.  Gross,  96  Mo.  App.  486,  70  S.  W.  393,  which  was  a  suit  to  annul  a 
marriage  on  the  ground  of  insanity  of  defendant  existing  when  the  marriage 
was  solemnized,  and  it  appeared  that  the  parties  lived  together  many  years 
and  that  defendant  had  lucid  intervals.  It  was  held  that  the  continuance  of 
the  marital  relations  was  a  ratification  of  the  nuptial  contract  by  both  par- 
ties. See,  also,  Barber  v.  People,  203  111.  543,  68  N.  E.  93,  holding  that  intox- 
ication does  not  render  the  marriage  void,  but  only  voidable. 

«o  Stim.   Am.   St   Law,  §  6113;   Inhabitants  of  Goshen  v.   Inhabitants  of 


20  MARRIAGE.  (Ch.  1 


SAME— NONAGE. 

13.  The  parties  must  be  of  an  age  at  wliich  the  law  deems  them  ca- 
pable of  intelligently  consenting  to  enter  into  the  marriage 
relation.  At  common  la-vp-  the  age  of  consent  is  14  for  males, 
and  12  for  females,  but  in  most  states  the  age  of  consent  has 
been  raised  by  statute.  The  effect  of  marriages  by  infants  is 
as  follo-nrs; 

(a)  Marriages  after  the  age  of  consent  are  binding. 

(b)  Marriages  bet-ween  the  age  of  consent  and  the  age  of  seven  years 

are   voidable   on   or   before   reaching   the   age   of   consent,   and 
by  either  party. 

(c)  Marriages  belo-w  the  age  of  seven  are  absolutely  void. 

The  age  of  consent — ^that  is,  the  age  at  which  an  infant  could 
consent  to  marriage,  so  that  it  would  be  binding — was  fixed  at 
common  law  at  14  for  males  and  12  for  females;  but  the  common 
law  has  been  changed  in  this  respect  in  many  states  by  statute.  In 
some  states  the  age  of  consent  has  been  raised  as  high  as  21  for 
males  and  18  for  females.  Marriages  entered  into  by  infants  who  are 
above  the  age  of  consent  are  binding  on  them,  and  cannot  be  avoided 
on  their  becoming  of  age."^  Marriages  entered  into  between  the  age 
of  7  and  below  the  age  of  consent  may  be  avoided  on  reaching  the  age 
of  consent,  or  before.'^  Marriages  entered  into  where  either  party  is 
below  7  are  absolutely  void.^^     The  fact  that  marriages  entered  into 

Richmond,  4  Allen   (Mass.)  458;    Wiser  v.  Lockwood's  Estate,  42  Vt  720; 
Hamaker  v.  Hamaker,  18  111.  137. 

612  Kent,  Comm.  78;  Co.  Litt.  79b;  1  Bl.  Comm.  436;  'Reeve,  Dom.  Rel. 
236;  Parton  v.  Hervey,  1  Gray  (Mass.)  119;  Pool  v.  Pratt,  1  D.  Chip.  (Vt.) 
254;   Governor  v.  Rector,  10  Humph.  (Tenn.)  61. 

62  2  Kent,  Comm.  78;  Co.  Litt.  33a,  79b;  2  Com.  Dig.  "Baron  and  Feme," 
5;  1  Bl.  Comin.  436;  Beggs  v.  State,  55  Ala.  108;  McDeed  v.  McDeed,  67 
111.  545 ;  Koonce  v.  Wallace,  52  N.  C.  194 ;  Eliot  v.  Eliot,  77  Wis.  G34,  46  N. 
W.  806,  10  L,  R.  A-  568;  notes  67,  68,  infra.  In  Aymar  v.  Roff,  3  Johns.  Gh. 
(N.  Y.)  49,  where  a  man  had  married  a  girl  under  12  years  of  age,  and  the 
girl  declared  her  ignorance  of  the  nature  and  consequences  of  the  marriage, 
and  her  dissent  to  it,  a  court  of  equity,  on  a  bill  by  her  next  friend,  ordered 
her  to  be  placed  under  its  protection  as  a  ward  of  the  court,  and  forbade  the 
man  to  have  any  intercourse  or  correspondence  with  her,  under  pain  of  con- 
tempt. But  see  Hardy  v.  State,  37  Tex.  Cr.  R.  55,  38  S.'  W.  615,  holding  that, 
under  a  statute  providing  that  males  under  16  years  and  females  under  14 
years  of  age  shall  not  marry,  there  can  be  no  common-law  marriage  with  a 
girl  of  10. 

63  2  Burn,  Ecc.  Law,  434a. 


§    13)  MENTAL    CAPACITY    OF    THE    PARTIES.  21 

above  the  age  of  consent  cannot,  like  the  contracts  of  infants,  be 
avoided  on  their  attaining  their  majority,  rests  on  the  peculiar  nature 
of  marriage — on  the  fact  that  it  is  not  a  contract,  but  a  status,  in- 
volving important  and  far-reaching  property  rights,  and  interests 
of  children  and  third  persons,  which  public  policy  cannot  allow  to 
be  jeopardized  at  the  will  of  either  party.**  But  an  infant's  promise 
to  marry,  though  he  be  over  the  age  of  consent,  may  be  avoided  by 
him  like  any  other  contract,  for  none  of  the  complications  arising 
from)  the  assumption  of  the  status  of  marriage  are  thereby  af- 
fected.*® The  marriage  of  infants  between  the  age  of  7  and  the 
age  of  consent  is  not  absolutely  void,  but  is  only  inchoate  and  im- 
perfect, and  if  on  coming  to  the  age  of  consent,  but  not  before 
reaching  that  age,*'  they  agree  to  continue  together,  they  need  not 
be  married  again,*^  and  their  continuing  to  live  together  after  reach- 
ing the  age  of  consent  is  a  sufficient  affirmance,** 

It  has  been  held  in  Ohio  that  a  marriage  by  an  infant  under  the 
age  of  consent  is  void  until  affirmed.  "Marriages  in  this  state," 
it  was  said  by  the  Ohio  court,  "contracted  by  male  persons  under 
the  age  of  18,  and  female  persons  under  14,  are  invalid,  unless  con- 
firmed by  cohabitation  after  arriving  at  those  ages,  respectively. 
Such  a  marriage  not  thus  confirmed  does  not  subject  a  party  to  pun- 
ishment for  bigamy  for  contracting  a  subsequent  marriage  while  the 
first  husband  or  wife  is  living."  *• 

This  doctrine  of  the  Ohio  courts  is  however  contrary  to  reason 
and  the  weight  of  authority.  Thus  it  was  held  in  Arkansas  that, 
under  an  indictment  for  bigamy,  evidence  that  the  first  marriage 
was  within  the  age  of  legal  consent  is  no  defense,  unless  it  also  be 


«*  Schouler,  Dom.  Rel.  §  20;  1  Bish.  Mar.,  Div.  &  Sep.  §  566;  Parton  v. 
Hervey,  1  Gray  (Mass.)  119. 

6B  Holt  V.  Ward  Clarencieux,  2  Strange,  937;  Hunt  v.  Peake,  5  Cow.  (N. 
Y.)  475,  15  Am.  Dec.  475 ;  Cannon  v.  Alsbury,  1  A.  K.  Marsh.  (Ky.)  76,  10  Am. 
Dec.  709;   Clark,  Cont.  231,  note,  and  cases  cited, 

66  Eliot  V.  Eliot,  77  Wis.  634,  46  N.  W.  806,  10  L.  R.  A.  568. 

6T  1  Bl.  Comm.  436 ;  Elliott  v.  Gurr,  2  Phillim.  Ecc.  16 ;  Parton  v.  Hervey, 
1  Gray  (Mass.)  119;  Koonce  v.  Wallace,  52  N.  C.  194;  Fitzpatrick  v.  E^tz- 
patrick,  6  Nev.  63 ;    State  v.  Cone,  86  Wis.  498,  57  N.  W.  50. 

68  2  Dane,  Abr.  301;  Coleman's  Case,  6  City  H.  Rec.  (N.  Y.)  3;  State  v. 
Parker,  106  N.  C.  711,  11  S.  E.  517.  See,  also,  Canale  v.  People,  177  111.  219, 
52  N.  E.  310,  holding  that  such  marriage  may  be  disaffirmed  after  arriving 
at  the  age  of  consent  by  ceasing  to  cohabit  and  marrying  again. 

«»  Shafher  v.  State,  20  Ohio,  1. 


22  MARRIAGE.  (Ch.  1 

shown  that  it  was  annulled  by  a  court  of  competent  jurisdiction.  "By 
the  common  law,"  it  was  said,  "if  he  did  not  disaffirm  the  marriage 
on  reaching  the  age  of  legal  consent,  but  cohabited  with  the  wife 
after  arriving  at  such  age,  it  would  be  an  affirmance  of  the  mar- 
riage." ^° 

Similarly  in  Alabama  the  Ohio  doctrine  has  been  disapproved  as 
opposed  to  the  great  weight  of  authority;  the  court  saying:  "The 
statute  serves  the  purpose  of  its  enactment  when  construed  as  op- 
erating merely  an  enlargement  of  the  age  of  consent  from  that 
fixed  by  the  common  law — of  12  in  females  and  14  in  males — 
to  14  in  females  and  17  in  males.  The  marriage  of  persons  not 
of  the  statutory  age  is,  as  was  the  marriages  between  persons  not  of 
the  age  of  consent  at  common  law,  imperfect,  becoming  perfect  on- 
ly by  affirmance  when  the  requisite  age  is  obtained,  until  this  affirm- 
ance, it  is  a  marriage  in  fact,  and  the  second  marriage  of  either 
party  is  bigamy."  ^^ 

The  right  to  disaffirm  a  marriage  on  the  ground  of  nonage  is  not 
limited  to  the  party  who  was  under  the  age  of  consent,  where  the 
other  party  was  of  a  suitable  age,  but  extends  also  to  the  latter. 
In  this  respect,  marriage  differs  from  contract.''*     A  person  under 

7  0  Walls  V.  State,  32  Ark.  565. 

TiBeggs  V.  State,  55  Ala.  108.  And  see  State  v.  CJone,  86  Wis.  498,  57  N. 
W.  50,  where  the  Ohio  doctrine  was  rejected  as  unsupported  "either  in  rea- 
son or  authoritj'."  Compare  Willits  v.  Willits,  76  Neb.  228,  107  N.  W.  379, 
.  5  L.  R.  A.  (N.  S.)  767. 

T2  Schouler,  Dom.  Rel.  §  20;  1  Bish.  Mar.  &  Div.  §  149;  Co.  Litt.  79;  Shaf- 
her  V.  State,  20  Ohio,  1.  But  see  People  v.  Slack,  15  Mich.  193.  "The  next 
legal  disability  is  want  of  age.  This  is  suflicient  to  avoid  all  other  contracts, 
on  account  of  the  imbecility  of  judgment  in  the  parties  contracting.  A  for- 
tiori, therefore,  It  ought  to  avoid  this,  the  most  important  contract  of  any. 
Therefore,  if  a  boy  under  14  or  a  girl  under  12  years  of  age  marries,  this 
marriage  is  only  inchoate  and  imperfect ;  and,  when  either  of  them  comes  to 
the  age  of  consent  aforesaid,  they  may  disagree,  and  declare  the  marriage 
\  oid,  w  ithout  any  divorce  or  sentence  in  the  spiritual  court.  This  is  founded 
(m  the  civil  law.  But  the  canon  law  pays  a  greater  regard  to  the  constitu- 
tion, than  the  age,  of  the  parties;  for,  if  they  are  habilos  ad  matrimonium, 
it  is  a  good  marriage,  whatever  their  age  may  be.  And  in  our  law  it  is  so 
far  a  marriage  that  if,  at  the  age  of  consent,  they  agree  to  continue  together, 
they  need  not  be  married  again.  If  the  husband  be  of  years  of  discretion, 
and  the  wife  under  12,  when  she  comes  to  years  of  discretion  he  may  disagree 
as  well  as  she  may,  for  in  contracts  the  obligation  must  be  mutual ;  both 
must  be  bound,  or  neither;  and  so  it  is,  vice  versa,  when  the  wife  is  of 
years  of  discretion,  and  the  husband  under."     1  Bl.  Comm.  436.     It  will  be 


§    15)         CAPACITY   OF   PARTIES   OTHERWISE   THAN   MENTALLY.  23 

the  age  of  consent  is  not  estopped  from  avoiding  his  marriage  on 
reaching  the  age  of  consent  by  the  fact  that  he  fraudulently  misrep- 
resented his  age.''^ 

A  marriage  that  is  voidable  because  of  nonage  differs  from  a 
marriage  that  is  voidable  because  of  a  canonical  disability,  in  that 
it  can  be  avoided  by  the  act  of  the  party  or  parties,  and  no  decree  of 
nullity  is  necessary.'^*  As  will  be  seen  in  another  section,  statutes 
raising  the  age  of  consent,  though  they  may  declare  a  marriage 
under  the  age  of  consent  to  be  "void,"  are  construed  to  mean 
"voidable,"  and  to  leave  the  effect  of  the  marriage  the  same  as  at 
common  law/^  Consent  of  parents,  as  an  essential  of  marriage,  is 
referred  to  in  another  place.''* 

CAPACITY  OF  PARTIES  OTHERW^ISE  THAN  MENTALLY. 

14.  The  parties  most  be  capable,  in  otber  respects  than  mentally,  of 

entering   into  tbe  marriage  relation.      Tbere  must  be   no  im- 
pediment of 

(a)  Relationsbip. 

(b)  Physical  incapacity* 
(o)    Civil   conditions, 
(d)   Prior  marriage. 

SAME— RELATIONSHIP. 

15.  The   parties  mnst  not  be  -within  the   prohibited   degrees   of  kin- 

dred, either  by  consanguinity  or  affinity.      In  the  absence   of  a 
statute,  there  can  be  no  valid   marriage  fvithin  the  Levitical 


noticed  that,  In  thus  stating  the  law,  Blaclsstone  not  only  erroneously  class- 
es marriage  as  a  contract,  but  by  doing  so  he  falls  into  error  in  attempt- 
ing to  support  the  rule  allowing  marriage  to  be  avoided  by  either  party, 
though  one  of  them  was  above  the  age  of  consent,  by  reference  to  prin- 
ciples of  the  law  of  contract ;  that  is,  he  erroneously  assumes  that,  where 
an  adult  makes  a  contract  with  an  infant,  he,  as  well  as  the  infant,  may 
avoid  it.  This  tends  to  show  the  difficulty  and  danger  in  considering  mar- 
riage as  a  contract. 

7  3  See  Eliot  v.  Eliot,  81  Wis.  295,  51  N.  W.  81,  15  L.  R.  A.  259. 

74  Co.  Litt.  79;  2  Burn.  Ecc.  Law.  500;  1  Bl.  Coram.  436;  Walls  v.  State, 
32  Ark.  565,  570;  McDeed  v.  McDeed,  67  111.  545;  People  v.  Slack,  15  Mich. 
193.  The  marriage  is  voidable  only  at  the  election  of  one  of  the  parties,  and 
not  by  a  parent  of  one  of  them.  Wood  v.  Baker,  43  Misc.  Rep.  310,  88  N.  T. 
Supp.  854. 

7  6  Post,  p.  47.  »e  I'ost,  p.  32. 


24  MARRIAGQ.  (Ch.  1 

degrees;  that  Is,  within  the  third  deg:ree  of  civil  reckoning, 
inclusive,  or,  in  other  words,  nearer  than  first  cousins.  In 
the  absence  of  statutory  provision  to  the  contrary,  such  mar- 
riages are  voidable,  and|  not  void.  The  ivhole  subject  is  no\r 
very  generally  regulated  by  statutes,  defining  the  limits  with- 
in which  relations  may  not  marry,  and  generally  declaring 
marriages  within  the  prohibited   degrees   absolutely  void. 

In  England,  prior  to  the  reign  of  Henry  VIII,  the  Hmits  of  the 
disqualification  of  relationship  had  been  extended  so  fai*  by  the 
ecclesiastical  courts  that  it  became  necessary  to  pass  a  statute  de- 
fining the  limits  within  which  relations  should  not  be  permitted 
to  intvermarry;  and  the  statute  of  32  Hen.  VIII,  c.  38,  was  enacted. 
This  statute  prohibited  the  ecclesiastical  courts*  from  impeaching 
"any  marriage  without  the  Levitical  degrees."  Under  this  statute 
the  impediment  of  consanguinity  has  been  treated  "as  applicable 
to  the  whole  ascending  and  descending  line,  and,  further,  as  ex- 
tending to  the  third  degree  of  the  civil  reckoning,  inclusive;  or,  in 
other  words,  so  as  to  prohibit  all  marriages  nearer  than  first  cous- 
ins." ''"'  Under  this  statute  the  impediment  of  consanguinity,  or 
blood  relationship,  would  extend  to  a  man's  grandmother,  his  fa- 
ther's or  mother's  sister,  his  mother,  or  his  daughter  or  grand- 
daughter. And  it  would  extend  to  a  woman's  grandfather,  her 
father's  or  mother's  brother,  her  father,  her  son,  or  her  grandson. ''• 
The  statute  is  old  enough  to  have  become  a  part  of  our  common 
law,  and  it  has  been  so  recognized.  In  most  states,  however,  stat- 
utes have  been  enacted.'^*  In  some  states  the  limits  have  been 
extended.®"  The  rule  of  consanguinity  applies  as  well  to  the  half 
blood  as  to  the  whole  blood,®^  and  to  illegitimate  as  well  as  legiti- 
mate issue.** 

TT  Schouler,  Dom.  Rel.  (5th  Ed.)  §  16. 

TsSohouler,  Dom.  Eel.  (5th  Ed.)  §  16;  Harrison  v.  State,  22  Md.  4G8,  85 
Am.  Dec.  658;  Bowers  v.  Bowers,  10  Rich.  Eq.  (S.  C.)  551,  73  Am.  Dec.  99. 
See,  also,  Weisberg  v.  Welsberg,  112  App.  Div.  231,  98  N.  Y.  Supp.  260. 

7  8  These  statutes  will  not  be  construed  as  retroactive.  Weisberg  v.  Weis- 
berg, 112  App.  Div.  231,  98  N.  Y.  Supi).  2G0. 

80  See  Stim.  Am.  St.  Law,  §  6111.  In  some  states  the  prohibition  includes 
first  cousins.    Id. 

8x  Reg.  V.  Inhabitants  of  Brighton,  1  Best  &  S.  447.  In  most  states  there 
are  special  enactments  to  this  effect. 

8  2  Reg.  V.  Chadwick,  11  Q.  B.  173;  Horner  v.  Liddiard,  1  Hagg.  Consist. 
337,  352;  Morgan  v.  State,  11  Ala.  289.  Contra,  State  v.  Roswell,  6  Conn. 
446. 


§   15)         CAPACITY   or  PARTIES   OTHERWISE  THAN   MENTALLY.  25 

Affinity  is  the  relationship  by  marriage  between  the  husband  and 
the  blood  relations  of  the  wife,  and  between  the  wife  and  the  blood 
relations  of  the  husband.  "A  husband  is  related  by  affinity  to  all 
the  consanguinei  of  his  wife,  and,  vice  versa,  the  wife  to  the  hus- 
band's consanguinei ;  for,  the  husband  and  wife  being  considered 
one  flesh,  those  who  are  related  to  the  one  by  blood  are  related  to 
the  other  by  affinity." «'  In  English  law  the  same  impediment  to 
marriage  existed  in  the  case  of  relationship  by  affinity  as  in  the 
case  of  relationship  by  blood,  so  that  a  man  could  not  marry  his 
grandfather's  wife,  his  wife's  grandmother,  his  father's  brother's 
wife,  his  mother's  brother's  wife,  his  wife's  father's  sister,  his  wife's 
mother's  sister,  his  stepmother,  his  wife's  mother,  his  wife's  sister, 
or  his  stepdaughter.  And  a  woman  could  not  marry  her  grand- 
mother's husband,  her  husband's  grandfather,  her  father's  sister's 
husband,  her  mother's  sister's  husband,  her  husband's  father's  broth- 
er, her  husband's  mother's  brother,  her  stepfather,  her  husband's 
father,  her  husband's  brother,  or  her  stepson.^*  In  this  country 
many  of  the  courts  have  refused  to  follow  the  English  law  in 
this  respect.  In  Vermont,  for  instance,  it  was  held  that  a  man 
could  marry  his  deceased  wife's  sister.^**  In  most  states  the  impedi- 
ment of  relationship  both  by  consanguinity  and  affinity  is  entirely 
regulated  by  statute. 

Consanguinity  and  affinity,  being  canonical  disabilities,  render  mar- 
riages voidable,  and  not  void,^*  unless  the  rule  has  been  changed 
by  statute,  and  all  the  principles  governing  voidable  marriages  ap- 
ply. In  most  states,  by  statute,  marriage  within  the  prohibited  de- 
grees of  kindred  are  now  declared  to  be  not  merely  voidable,  but 
void.®^  But  statutes  declaring  such  marriages  to  be  void  have  been 
held  in  some  courts  to  be   simply   declaratory  of  the   English   law, 


83  Gibs.  Cod.  412;   1  Bl.  Comm.  435;   Butler  v.  Gastrin,  Gilb.  Cli.  156. 

84  Schouler,  Dom.  Rel.  §  16;  Hill  v.  Good,  Vaughan,  302;  Harris  v.  Hicks, 
2  Salk.  548. 

85  Blodget  V.  Brinsmaid,  9  Vt.  27. 

86  Schouler,  Dom.  Rel.  §  16;  Harrison  v.  State,  22  Md.  468,  85  Am.  Dec. 
658;  Boylan  v.  Deinzer,  45  N.  J.  Eq.  485,  18  Atl.  119.  A  marriage  between 
relations  within  forbidden  degrees  will  be  annulled  at  the  instance  of  either 
party,  though  the  applicant  may  have  knowingly  and  willfully  entered  into 
the  same.    Martin  v.  Martin,  54  W.  Va.  301,  46  S.  E.  120. 

8  7  Slim.  Am.  St.  Law,  §  6112;  Mcllvain  v.  Scheibley,  109  Ky.  455,  59  S.  W. 
498. 


26  MARRIAGE.  (Ch.  1 

that  is,  to  mean  that  they  are  void  only  upon  a  decree  of  court  dur- 
ing the  lives  of  the  parties.** 

SAME— PHYSICAL  INCAPACITY. 

16.  The  parties  must  be  physically  capable;  but  capacity  to  copulate, 
not  fruitfulness,  is  the  test.  The  incapacity  must  exist  at  the 
time  of  the  marriage.  Neither  party  can  set  up  his  or  her 
ovrn.  impotence  to  defeat  the  marriage.  In  the  absence  of 
statutory  provision  to  the  contrary,  impotence  renders  a  mar- 
riage voidable,   and   not  void. 

The  parties  to  a  marriage  must  be  physically  capable.  Ability 
to  propagate  the  species  is  not,  however,  as  might  well  be  supposed, 
the  test  of  the  requisite  physical  condition.  If  the  parties  are  able 
to  have  sexual  intercourse,  the  requirements  of  the  law  are  satisfied. 
Copula,  not  fruitfulness,  is  the  test.*^  There  must  be  an  impotentia 
copulandi  on  the  part  of  the  man  or  of  the  woman,  proceeding  from 
malformation,  frigidity,  disease,  or  some  other  like  cause.  The  law 
does  not  fail  to  recognize  the  procreation  of  children  as  one  of  the 
ends  of  matrimony,  but  it  does  refuse  to  annul  a  marriage  merely 
because  one  of  the  parties  is  not  capable  of  procreation.®"  Impo- 
tence must  exist  at  the  time  of  the  marriage,  to  avoid  it.  If  a  party 
is  physically  capable  of  copulation  at  the  time  of  the  marriage,  his  or 
her  subsequent  impotency  does  not  avoid  the  marriage.®^  Neither 
party  will  be  permitted  to  set  up  his  or  her  own  impotence  as  a 
ground  of  nullity.®^     Nullity  of  marriage  has  been  decreed  on  the 

8  8  n,irrison  v.  State,  22  Md.  4G8,  85  Am.  Dec.  G58;    Bonham  v.  Badgley, 

2  Giliuan  (111.)  622;  Parker's  Appeal,  44  Pa.  309;  Com.  v.  Ferryman,  2  Leigh 
(Va.)  717 ;  Bowers  v.  Bowers,  10  Rich.  Eq.  (S.  C.)  551,  73  Am.  Dec.  99 ;  post, 
p.  47. 

8s  D V.  A ,  1  Rob.  Ecc.  279,  298;    Anon.,  Deane  &  S.  29G;    Briggs 

V.  Morgan,  3  Phillim.  Ecc,  325;  Devaubagh  v.  Devanbagh,  5  Paige  (N.  Y.) 
554;    E V.  T ,  33  Law  J.  Mat.  Cas.  37;    J.  G.  v.  H.  G.,  33  Md.  401, 

3  Am.  Rep.  183;  Keith  v.  Keith,  Wright  (Ohio)  518;  Powell  v.  Powell,  18 
Kan.  371,  26  Am.  Rep.  774 ;  Bascomb  v.  Bascomb,  25  N.  H.  267 ;  Norton  v. 
Norton,  2  Aiken  (Vt.)  188;  Schroter  v.  Schroter,  56  Misc.  Rep.  69,  106  N.  Y. 
Supp.  22;   Wendel  v.  Wendel,  30  App.  Div.  447,  52  N.  Y,  Supp.  72. 

8  0  D V.  A ,  1  Rob.  EJcc.  279,  298;   Schroter  v.  Schroter,  56  Misc.  Rep. 

69,  106  N.  Y.  Supp.  22. 

»iW V.  H ,  30  Law  J.  Prob.  Mat.  &  Adm.  73;  D v.  A ,  1  Rob. 

Ecc  279,  298. 

92  Norton  v.  Seton,  3  Phillim.  Ecc.  147. 


§    17)         CAPACITY    OF   PARTIES    OTHERWISE    THAN    MENTALLY.  27 

ground  of  impotence,  even  when  it  was  curable,  where  the  party 
refused  to  submit  to  the  necessary  treatment  to  effect  a  cure.®' 
Except  in  such  a  case,  however,  curable  impotence  does  not  render 
a  marriage  invalid. 

In  the  absence  of  a  statutory  provision  to  the  contrary,  impo- 
tence, being  a  canonical  impediment,  renders  a  marriage  voidable, 
and  not  absolutely  void,»*  and  the  principles  applicable  to  voidable 
marriages  apply.®^  In  some  states  this  rule  has  been  changed  by 
statute.®^  But  the  same  rule  of  construction  applies  to  these  stat- 
utes as  has  been  mentioned  as  applicable  to  statutes  in  regard  to 
relationship.  As  to  whether  a  court  of  equity  has  jurisdiction,  in 
this  country,  to  annul  a  marriage  on  the  ground  of  impotence  is 
shown  in  another  place.®' 


SAME— CIVIL   CONDITIONS— RACE,   ETC. 

17.  Tlie  parties  must  not  be  disqualified  by  civil  conditions.  Thus, 
in  many  states,  marriages  between  negroes,  Indians,  or  Chi- 
nese, and  MP-liite  persons,  are  prohibited. 

At  common  law,  and  in  England  to-day,  no  impediment  to  mar- 
riage exists  on  account  of  race,  color,  religion,  or  social  rank.®*  In 
many  of  the  United  States,  by  statute,  however,  marriages  between 
white  persons  and  negroes,  and  in  a  few  states  between  white  per- 
sons and  Indians  or  Chinese,  are  unlawful.®®  These  statutes,  as 
a  rule,  make  such  unions  absolutely  void,  without  the  necessity  of 
a  judicial  sentence,  and  leave  either  party  free  to  enter  into  a  sub- 
sequent marriage. 

»3  Devanbagh  v.  Devanbagh,  6  Paige  (N.  Y.)  175;    L v.  L ,  7  Prob. 

Div.  IG. 

94  Schouler,  Dom.  Rel.  §  19;  T,  v.  M.  L.  R.,  1  Prob.  &  Div.  31;  A.  v.  B., 
L.  R.  1  Prob.  &  Div.  550 ;  T,  v.  D.,  L.  R.  1  Prob.  &  Div.  127 ;  Cavell  v.  Prince, 
L.  R.  1  Exch.  246 ;  Anon.,  24  N.  J.  Eq.  19 ;  P.  v.  S.,  37  Law  J.  Mat.  Cas.  SO ; 
Smith  V.  Morehead,  59  N.  C.  360;  G v.  G ,  67  N.  J.  Eq.  .30,  56  All.  736. 

9  5  Post,  p.  SS. 

9  0  stim.  Am.  St  Law,  §  6112, 

9T  i>ost,  p.  42. 

98  1  Bish.  Mar.,  Div.  &  Sep.  §  691. 

99  Stim.  Am.  St.  Law,  §  6112  F.  See  State  v.  Brady,  9  Humph.  (Tenn.)  74; 
State  V.  Hooper,  27  N.'  C.  201;  Succession  of  Minvielle,  15  La.  Ann.  342; 
Bailey  v.  Fislie,  34  Me.  77;  Jones  v.  Jones,  45  Md.  144;  In  re  Wallier's  Es- 
tate, 5  Ariz.  70,  46  Pac  67. 


28  MARRIAGE.  (Ch.  1 

Slavery  was  formerly  a  further  impediment.  It  was  a  rule  that 
a  slave,  being  a  chattel,  could  not  make  any  contract;  and,  as 
marriage  was  in  the  nature  of  a  contract,  slave  marriages  were 
therefore  absolutely  void.^  But  they  have  now  very  generally  been 
legalized  by  statute,  where  cohabitation  continued  after  emancipation. 


SAME— PRIOR  MARRIAGE. 

18.  In  the  absence  of  statntory  provision  to  tlie  contrary,  a  valid 
and  undissolved  prior  marriage  of  either  party  renders  a  mar- 
riage absolutely  void  ab  initio,  even  though  the  parties  may 
have  acted  in  good  faith,  and  in  a  reasonable  belief  that  the 
former  spouse  ^ras  dead  or  divorced. 

A  valid  and  undissolved  prior  marriage  by  either  or  both  of  the 
parties  is  an  impediment  to  marriage.  An  attempted  second  mar- 
riage while  a  valid  prior  marriage  is  undissolved  is  absolutely  void, 
and  void  ab  initio,  without  any  decree  of  court;  the  children  of  the 
second  marriage  being  illegitimate,  and  the  marriage  being  subject 
to  collateral  attack  by  any  person,  and  at  any  time.''  This  is  the  com- 
mon-law rule,  but  it  has  been  changed  in  some  states  by  statutes  pro- 
viding, in  substance,  that  if  the  second  marriage  was  entered  into  in 
good  faith,  and  on  a  reasonable  belief  in  the  former  spouse's  death, 
the  marriage  is  merely  voidable,  becoming  void  only  on  a  declara- 

1  Hall  V.  U.  S.,  92  U.  S.  27,  23  L.  Ed.  597 ;  Cantelou  v.  Doe,  56  Ala.  519 ; 
Howard  v.  Howard,  51  N.  C.  235. 

2  Riddlesden  v.  Wogan,  Cro.  Eliz.  858 ;  Pride  v.  Earls  of  Bath,  1  Salk.  121 ; 
Plant  V.  Taylor,  7  Hurl.  &  N.  211 ;  Miles  v.  Chilton,  1  Rob.  Ecc.  687 ;  In  re 
Wilson's  Trusts,  L.  R.  1  Eq.  247 ;  Zahorka  v.  Geith,  129  Wis.  498,  109  N.  W. 
552;  Glass  v.  Glass,  114  Mass.  563;  Martin's  Heirs  v.  Martin,  22  Ala.  86; 
Fenton  v.  Reed,  4  Johns.  (N.  Y.)  52,  4  Am.  Dec.  244;  Heffner  v.  Heffner, 
23  Pa.  104;  Jackson  v.  Claw,  18  Johns.  (N.  Y.)  347;  Blossom  v.  Barrett,  37 
N.  Y.  434,  97  Am.  Dec.  747 ;  Higgins  v.  Breen,  9  Mo.  497 ;  Ponder  v.  Graham, 
4  Fla.  23;  Tefft  v.  Tefft,  35  Ind.  44;  Rhea  v.  Rhenner,  1  Pet.  105,  7  L.  Ed. 
72;  Drummond  v.  Irish,  52  Iowa,  41,  2  N.  W.  622;  Dare  v.  Dare,  52  N.  J. 
Eq.  195,  27  Atl.  654;  Reeves  v.  Reeves,  54  111.  332;  Cartwright  v.  McGown, 
121  111.  388,  12  N.  E.  737,  2  Am.  St.  Rep.  105;  Emerson  v.  Shaw,  56  N.  H. 
418;  Janes  v.  Janes,  5  Blackf.  (Ind.)  141;  Williams  v.  State,  44  Ala.  24;  note 
5,  infra.  It  Is  Immaterial  whether  the  former  marriage  was  formal  or 
informal.  A  marriage  by  mutual  consent,  and  cohabitation  as  husband  and 
wife,  without  any  formal  celebration,  will  render  a  subsequent  formal  mar- 
riage to  another  void.    Applegute  v.  Applegate,  45  N.  J.  Eq.  116,  17  Atl.  293. 


§    18)         CAPACITY    OF   PARTIES   OTHERWISE    THAN    MENTALLY.  29 

tion  of  nullity  by  a  court  of  competent  jurisdiction,'  and  that  the 
issue  shall  be  deemed  the  legitimate  children  of  the  parent  not 
previously  married.*  In  the  ab?cnce  of  a  statutory  provision,  how- 
ever, the  good  faith  of  either  or  both  of  the  parties  is  immaterial, 
in  so  far  as  the  validity  of  the  marriage  and  legitimacy  of  the 
children  are  concerned,^  though  in  some  jurisdictions  a  bona  fide 
belief  in  the  death  of  a  husband  or  wife,  under  certain  circum- 
stances, may  be  a  defense  in  a  prosecution  for  bigamy.^ 

A  void  marriage,  of  course,  is  no  marriage  at  all,  and  can  impose 
no  restraint  on  the  right  of  the  parties  to  marry  again.  Therefore, 
where  an  attempted  marriage  is  void,  a  second  marriage  is  perfectly 
valid,  though  the  first  marriage  has  not  been  judicially  annulled.^ 
But,  for  obvious  reasons,  it  is  desirable  to  have  the  validity  of  the 
prior  marriage  determined  by  sentence  of  nullity.  A  divorce  a 
mensa  et  thoro,  of  course,  does  not  entitle  either  party  to  marry 
again;  but  it  is  otherwise,  in  the  absence  of  statutory  prohibition, 
in  the  case  of  a  divorce  a  vinculo  matrimonii.  In  many  states,  how- 
ever, statutes  have  been  enacted  placing  restrictions  on  the  right  to 
marry  in  the  latter  case,  also,  as  by  prohibiting  a  marriage  within 
a  certain  time,  or  prohibiting,  in  case  of  divorce  for  adultery,  the 

•  Taylor  v.  Taylor,  63  App.  Div.  231,  71  N.  Y.  Supp.  411;  In  re  Del  Geno- 
vese's  Will,  56  Misc.  Rep.  418,  107  N.  Y.  Supp.  1033.  There  must,  however, 
be  reasonable  efforts  made  to  ascertain  the  facts.  Gall  v.  Gall,  114  N.  Y.  109, 
21  N.  EL  106.  Where  the  husband  was  in  the  penitentiary,  and  the  wife 
had  not  seen  him  for  five  years,  there  was  no  presumption  of  his  death  to 
support  the  good  faith  of  the  wife  in  marrying  again.  Alixanian  v.  Alixanian, 
28  Misc.  Rep.  638,  59  N.  Y.  Supp.  1068.  That  a  decree  of  nullity  is  neces- 
sary, and  a  mere  separation  insufficient,  to  avoid  the  second  man-iage,  see  In 
re  Harrington's  Estate,  140  Cal.  244,  73  Pac.  1000,  98  Am.  St.  Rep.  51,  re- 
hearing denied  140  Cal.  294,  74  Pac.  136. 

4  Stim.  Am.  St.  Law,  §  6116. 

B  In  re  Wilson's  Trusts,  L.  R.  1  Eq.  247 ;  Glass  v.  Glass,  114  Mass.  563 ; 
People  V.  Dawell,  25  Mich.  247,  12  Am.  Rep.  260;  Kenley  v.  Kenley,  2  Yeates 
(Pa.)  207;  HefCner  v.  HefCner,  23  Pa.  104;  Thomas  v,  Thomas,  124  Pa.  646, 
17  Atl.  182 ;  Webster  v.  Webster,  58  N.  H.  3 ;  Pain  v.  Pain,  37  Mo.  App.  110. 

6  Clark,  Cr.  Law,  309.     See,  also,  Wilson  v.  Allen,  108  Ga.  275,  33  S.  E.  97."). 

7  Patterson  v.  Gaines,  6  How.  550,  12  L.  Ed.  553 ;  Bruce  v.  Burke,  2  Ad- 
dams,  Bcc.  471,  2  Eng.  Ecc.  R.  381;  Reg.  v.  Chadwick,  12  Jur.  174,  11  Q.  B. 
173;  Appleton  v.  WarQer,  51  Barb.  (N.  Y.)  270;  In  re  Bethune's  Will,  4  Dom. 
Sur.  (N.  Y.)  392;  McCaffrey  v.  Benson,  38  La.  Ann.  198;  Reeves  v.  Reeves, 
54  111.  332;  Drummond  v.  Irish,  52  Iowa,  41,  2  N.  W.  622;  Dare  v.  Dare,  52 
N.  J.  Eq.  195,  27  Atl.  654;  In  re  Eichhoflf's  Estate,  101  Cal.  600,  36  Pac.  11. 


30  MARRIAGE.  (Ch.  1 

guilty  party  from  marrying  his  or  her  paramour,  or  from  marrying 
at  all  in  the  lifetime  of  the  other.*  It  has  been  held  that  a  mar- 
riage in  violation  of  such  prohibitions  is  not  to  be  regarded  as  void, 
so  as  to  bastardize  issue,  unless  expressly  so  declared  by  statute." 
The  divorce  must  be  absolute.  A  decree  nisi  is  not  sufficient  to 
entitle  either  party  to  marry. ^"  And  of  course  the  divorce  must  be 
valid. ^^  A  marriage  between  persons,  one  of  whom  has  a  husband 
or  wife  under  a  prior  valid  and  undissolved  marriage  still  living,  is 
absolutely  void,  and  can  have  no  effect  whatever  as  a  marriage.^ ^ 
The  presumptions  as  to  dissolution  of  the  prior  marriage  by  death 
or  divorce  are  considered  in  a  subsequent  section.^* 


8  See  Succession  of  Hernandez,  46  La.  Ann.  9G2,  15  South.  461,  24  L.  K. 
A.  831 ;  Cox  v.  Combs,  8  B.  Mon.  (Ky.)  231 ;  Park  v.  Barron,  20  Ga.  702,  65 
Am.  Dec.  641;  Clark  v.  Cassidy,  62  Ga.  407;  McLennan  v.  McLennan,  31 
Or.  480,  50  Pac.  802,  38  L.  R.  A.  863,  65  Am.  St  Rep.  835;  Eaton  v.  Eaton, 
66  Neb.  676,  92  N.  W.  995,  60  L.  R.  A.  605 ;  In  re  Graham  (N.  J.  Ch.)  46  Atl. 
224;  Tyler  v.  Tyler,  170  Mass.  150,  48  N.  E.  1075.  See,  as  to  conflict  of  laws 
(going  out  of  the  state  to  evade  the  law),  post,  p.  50.  A  statutory  prohibi- 
tion to  the  effect  that,  In  case  of  divorce  on  the  ground  of  adultery,  the 
guilty  party  can  never  marry  his  or  her  accomplice  in  adultery,  is  directed 
against  marriage  between  the  guilty  spouse  and  the  particular  person  or  per- 
sons who  are  designated  in  the  petition  for  the  divorce,  or  described  in  the 
evidence  in  support  of  it,  and  upon  which  petition  and  evidence  the  decree 
of  divorce  is  founded.  Succession  of  Hernandez,  46  La.  Ann.  962,  15  South. 
461,  24  L.  R.  A.  831. 

0  Park  V.  Barron,  20  Ga.  702,  65  Am.  Dec.  641 ;  Crawford  v.  State,  73 
Miss.  172,  18  South.  848,  35  L.  R,  A.  224.  Contra.  Ovitt  v.  Smith,  68  Vt. 
35,  33  Atl.  769,  35  L.  R.  A.  223.  See,  also,  Thoren  v.  Attorney  General,  1 
App.  Cas.  686. 

10  Cook  V.  Cook,  144  Mass.  163,  10  N.  E.  749;  Pettit  v.  Pettit,  105  App.  Div 
312,  93  N.  Y.  Supp.  1001. 

11  McCreery  v.  Davis,  44  S.  O.  195,  22  S.  E.  178,  28  L.  R.  A.  655,  51  Am 
St.  Rep.  794;  State  v.  Westmoreland,  76  S.  C.  145,  56  S.  E.  673,  8  L.  R.  A. 
(N.  S.)  842. 

12  See  the  cases  cited  in  notes  2-7,  supra.  It  was  held,  however,  in  Mas- 
sachusetts, that  if  one  party  was  ignorant  that  the  other  had  a  spouse  liv- 
ing, and  has  died,  the  other  cannot  annul  the  marriage.  Rawson  v.  Rawson, 
156  Mass.  578,  31  N.  E.  653.  It  has  been  held  in  New  York  and  New  Jersey 
that  such  marriages,  being  absolutely  void,  cannot  be  ratified.  Pettit  v.  Pet- 
tit, 105  App.  Div.  312,  93  N.  Y.  Supp.  1001;  In  re  Graham  (N.  J.  Ch.)  46 
Atl.  224.  But  in  other  states  It  has  been  held  that  even  such  marriages 
could  be  ratified  by  continued  cohabitation  after  removal  of  the  impediment. 
Stein  V.  Stein,  66  111.  App.  526;  People  v.  Booth,  121  Mich.  131,  79  N.  W.  1100. 

18  Post,  p.  44. 


§§    19-21)  FORMALITIES   IN    CELEBRATION.  31 

FORMALITIES  IN  CELEBRATION— INFORMAL  MARRIAGES. 

19.  The  parties  should  comply  with  the  statutory  law  in  the  celebra- 

tion of  marriage,  but  noncompliance  does  not  necessarily  ren- 
der the  marriage  invaUd.  At  common  law  no  formaUties  are 
necessary;  mutual  consent,  express  or  implied  from  conduct, 
being   sufficient. 

20.  Informal  marriages  may  be  per  verba  de  praesenti— that  is,  by  con- 

sent to  live  together  presently  as  husband  and  wife— no  cop~ 
ula  being  necessary.  It  is  sometimes  said  that  there  may  be 
a  marriage  per  verba  de  futuro  cum  copula— that  is,  by  an 
agreement  to  marry  in  the  future,  followed  by  copula  in 
pursuance  thereof.  But  it  is  believed  that  by  the  better  au- 
thority a  marriage  can  be  effected  per  verba  de  futuro  cum 
copula  only  w^hen  the  circumstances  are  such  that  a  present 
agreement  at  the  time  of  the  copula  can  be  implied. 

21.  If   a    statute   prescribes   formalities   for   the   celebration   of   mar- 

riage, it  is  not  to  be  construed  as  rendering  an  informal  mar- 
riage invalid,  unless  it  expressly  so  declares. 

Whether  a  marriage  is  valid  at  common  law,  without  formal  cele- 
bration, is  a  question  upon  which  the  courts  have  been  divided. 
Perhaps  in  England,  and  certainly  by  the  great  weight  of  authority 
in  this  country,  no  formality  in  the  celebration  of  a  marriage  is 
necessary,  unless  required  by  statute;  but  a  marriage  is  perfectly 
valid  at  common  law,  whatever  the  form  of  celebration,  and  even 
if  all  ceremony  was  dispensed  with.  All  that  is  necessary  is  that 
the  parties  shall  consent  to  presently  live  together  as  husband  and 
wife.^*    A  few  of  the  courts  have  refused  to  recognize  informal  mar- 

14  Reg.  V.  Minis,  10  Clark  &  F.  534;  Dalrymple  v.  Dalrymple,  2  Hagg. 
Consist.  54;  Hilton  v.  Roylance,  25  Utah,  129,  69  Pac.  UOO,  58  L.  R.  A.  723, 
95  Am.  St.  Rep.  821;  Dickerson  v.  Brown,  49  Miss,  357;  Jewell  v.  Jewell, 
1  How.  219,  11  L.  Ed.  108;  Meister  v.  Moore,  96  U.  S.  76,  24  L.  Ed.  826; 
Mathewson  v.  Phoenix  Iron  Foundry  (a  C.)  20  Fed.  281;  Teter  v.  Teter, 
101  Ind.  129,  51  Am.  Rep.  742;  Campbell's  Adm'r  v.  GuUatt,  43  Ala.  57; 
State  V.  Bittick,  103  Mo.  183,  15  S.  W.  325,  11  L.  R,  A.  587,  23  Am.  St.  Rep. 
869;  Graham  v.  Bennet,  2  Cal.  503 ;  White  v.  White,  82  Cal.  427,  23  Pac. 
276,  7  L.  R.  A.  799;  Bowman  v.  Bowman,  24  111.  App.  165;  Com.  v.  Stump, 
53  Pa.  132,  91  Am.  Dec.  198;  Askew  v.  Dupree,  30  Ga.  173;  Bailey  v.  State, 
36  Neb.  808,  55  N.  W.  241;  Port  v.  Port,  70  111.  484;  Hebblethwaite  v.  Hep- 
worth,  98  111.  126;  Hutchins  v.  Kimmell,  31  Mich.  126,  18  Am.  Rep.  1&4 ; 
Williams  v.  Kilburn,  88  Mich.  279,  50  N.  W.  293;  Carmichael  v.  State,  32 
Ohio  St,  553;  Goodrich  v.  Cushman,  34  Neb.  460,  51  N.  W.  1041;  Fenton  v. 


32  MARRIAGE.  (Ch.  1 

riages,^"  but  in  most  of  the  states  they  are  recognized  unless  a 
statute  has  expressly  made  a  formal  celebration  necessary. 

In  most  if  not  all  of  the  states,  statutes  have  been  enacted  pre- 
scribing certain  formalities  to  be  observed  in  the  celebration  of 
marriages — as,  for  instance,  statutes  prescribing  the  persons  who 
shall  be  competent  to  perform  the  marriage  ceremony,  or  requiring 
a  license,  publication  of  banns,  consent  of  parents,  registration,  etc. 
By  the  great  weight  of  opinion  in  this  country,  however,  these  stat- 
utes should  be  construed  as  directory  merely,^^  and  not  mandatory, 
unless  they  are  expressly  made  mandatory  by  their  terms;  and  mar- 
riages which  are  in  other  respects  valid  at  common  law  are  held  to 
be  valid  in  spite  of  any  informality  in  their  celebration,  unless  the 
statute  expressly  declares  that  failure  to  observe  the  prescribed 
formality  shall  render  the  marriage  void.  The  mere  fact  that  a 
statute  prescribes  certain  formalities  does  not  render  invalid  a  mar- 
riage in  which  those  formalities  are  not  observed.^' 

Keod.  4  Johns.  (N.  Y.)  52,  4  Am.  Dec.  244;  Jackson  v.  Winne,  7  Wend.  (N. 
Y.)  47,  22  Am.  Dec.  5G3 ;  Cheney  v.  Arnold,  15  N.  Y.  345,  69  Am.  Dec.  609; 
Overseers  of  Poor  of  To\^ti  of  Newbuiy  v.  Overseers  of  Poor  of  Town  of 
Brunswick,  2  Vt.  151,  19  Am.  Dec.  703;  Hynes  v.  McDermott,  91  N.  Y.  451, 
43  Am.  Rep.  677;  Wilcox  v.  Wilcox,  46  Hun  (N.  Y.)  32;  Van  Tuyl  v.  Van 
Tuyl,  57  Barb.  (N.  Y.)  235;  Hargroves  v.  Thompson,  31  Miss.  211;  Simon  v. 
State,  31  Tex.  Or.  R.  186,  20  S.  W.  399,  37  Am.  St.  Rep.  802;  Haggin  v. 
Haggin,  35  Neb.  375,  53  N.  W.  209 ;  Dyer  v.  Brannock,  66  Mo.  391,  27  Am. 
Rep.  359;  State  v.  Worthingham,  23  Minn.  528;  Dumaresly  v.  Fishly,  3 
A.  K.  Marsh.  (Ky.)  368;  Guardians  of  the  Poor  v.  Nathans,  2  Brewst.  (Pa.) 
149 ;  Town  of  Londonderry  v.  Town  of  Chester,  2  N.  H.  268,  9  Am.  Dec.  61 ; 
Blanchard  v.  Lambert,  43  Iowa,  228,  22  Am.  Rep.  245;  Jackson  v.  Banister 
(Tex.  Civ.  App.)  105  S.  W.  66;  Steves  v.  Smith  (Tex.  Glv.  App.)  107  S.  W. 
141 ;  Burnett  v.  Burnett  (Tex.  Civ.  App.)  83  S.  W.  238. 

15  Denison  v.  Denison,  35  Md.  361;  Beverlin  v.  Beverlin,  29  W.  Va.  732, 
3  S.  E.  36;  Inhabitants  of  Town  of  Milford  v.  Inhabitants  of  Town  of  Wor- 
cester, 7  Mass.  48;  Com.  v.  Munson,  127  Mass.  459,  34  Am.  Rep.  411;  Nor- 
cross  V.  Norcross,  155  Mass.  425,  29  N.  E.  506;  State  v.  Hodgskins,  19  Me. 
155,  36  Am.  Dec.  742 ;  Grisham  v.  State,  2  Yerg.  (Tenn.)  589 ;  State  v.  Samuel, 

19  N.  C.  177:  In  re  Smith's  Estate,  4  Wash.  St.  702,  30  Pac.  1059,  17  L.  R, 
A.  573 ;  Morrill  v.  Palmer,  68  Vt.  1,  33  Atl.  829,  33  L.  R.  A.  411. 

16  Franklin  v.  Lee,  30  Ind.  App.  31,  62  N.  E.  78;  State  v.  Zichfeld,  23 
Nev.  304,  46  Pac.  802,  34  L.  R.  A.  784,  62  Am.  St.  Rep.  800;  Renfrow  v. 
Renfrew,  60  Kan.  277,  56  Pac.  534,  72  Am.  St.  Kep.  350;  State  v.  McGilvery, 

20  Wash.  240,  55  Pac.  115.  But  see  Smith  v.  North  Memphis  Sav.  Bank,  115 
Tenn.  12,  89  S.  W.  392 ;  and  Offield  v.  Davis,  100  Va.  250,  40  S.  E.  910,  where 
such  statutes  are  held  to  be  mandator^'. 

IT  See  the  cases  cited  above;  and  see,  particularly,  Meister  v.  Moore,  96 


§§    19-21)  FORMALITIES   IN    CELEBRATION.  33 

In  states  where  no  formalities  of  celebration  are  necessary,  words 
expressing  mutual  consent  to  live  together  presently  as  husband 
and  wife,  with  nothing  more,  constitute  a  valid  marriage.  This 
is  known  as  "marriage  per  verba  de  praesenti."  ^® 


U.  S.  76,  24  L.  Ed.  826;  Blackburn  v.  Crawford,  3  Wall.  185,  18  L.  Ed.  186; 
Hutchins  v.  Kimmell,  31  Mich.  126,  18  Am.  Rep.  164;  State  v.  Worthingham, 

23  Minn.  528;  Overseers  of  Poor  of  Town  of  Newbury  v.  Overseers  of  Poor 
of  Town  of  Brunswick,  2  Vt.  151,  19  Am.  Dec.  703;   Bowman  v.   Bowman, 

24  111.  App.  165;  Port  v.  Port,  70  ill.  484;  Parton  v.  Hervey,  1  Gray  (Mass.) 
119 ;  Hervey  v,  Moseley,  7  Gray  (Mass.)  479,  66  Am.  Dec.  515 ;  Teter  v.  Teter, 
101  Ind.  129,  51  Am.  Rep.  742;  Town  of  Londonderry  v.  Town  of  Chester, 
2  N.  H.  268,  9  Am.  Dec.  61;  Dyer  v.  Brannock,  66  Mo.  391,  27  Am.  Rep.  359; 
Dumaresly  v.  Fishly,  3  A.  K.  Marsh.  (Ky.)  368;  Cannon  v.  Alsbury,  1  A.  K. 
Marsh.  (Ky.)  76,  10  Am.  Dec.  709; 'Stevenson  v.  Gray,  17  B.  Mon.  (Ky.)  193; 
Holmes  v.  Holmes,  6  La.  463,  26  Am.  Dec.  482.  That  consent  of  parents  is 
not  necessary  to  the  validity  of  a  marriage,  even  though  a  statute  prohibits 
a  marriage  without  such  consent,  and  imposes  a  penalty  for  violation  of  its 
provisions,  see  Rex  v.  Inhabitants  of  Birmingham,  8  Barn.  &  C.  29 ;  Sturgis 
V.  Sturgis  (Or.)  93  Pac.  696,  15  L.  R.  A.  (N.  S.)  1034;  Inhabitants  of  Hiram 
V.  Pierce,  45  Me.  367,  71  Am.  Dec.  555 ;  Parton  v.  Hervey,  1  Gray  (Mass.) 
119 ;  Hervey  v.  Moseley,  7  Gray  (Mass.)  479,  66  Am.  Dec.  515 ;  Goodwin  v. 
Thompson,  2  G.  Greene  (Iowa)  329;  Smyth  v.  State,  13  Ark.  696;  Holtz  v. 
Dick,  42  Ohio  St.  23,  51  Am.  Rep.  791;  Wyckoff  v.  Boggs,  7  N.  J.  Law,  138; 
Hargroves  v.  Thompson,  31  Miss.  211 ;  Cannon  v.  Alsbury,  1  A.  K.  Marsh. 
(Ky.)  76,  10  Am.  Dec.  709;  Hunter  v.  Milam  (Cal.)  41  Pac.  332.  But  see  In 
re  McLaughlin's  Estate,  4  Wash.  St.  570,  30  Pac.  651,  16  L.  R.  A.  699.  That 
solemnization  before  a  qualified  minister  or  particular  magistrate  is  not  nec- 
essary to  the  validity  of  a  marriage,  though  a  statute  declares  that  only 
ministers  and  magistrates  shall  be  competent  to  perform  the  marriage  cere- 
mony, see  Meister  v.  Moore,  96  U.  S.  76,  24  L.  Ed.  826;  Town  of  London- 
derry V.  Town  of  Chester,  2  N.  H.  268,  9  Am.  Dec.  61;  Campbell's  Adm'r 
V.  Gullatt,  43  Ala.  57 ;  Carmichael  v.  State,  12  Ohio  St.  553 ;  Holder  v.  State, 
35  Tex.  Cr.  R.  19,  29  S.  W.  793;  Hunter  v.  Milam  (Cal.)  41  Pac.  332.  And 
as  to  want  of  a  license  required  by  statute  not  rendering  a  marriage  invalid, 
see  Meister  v.  Moore,  96  U.  S.  76,  24  L.  Ed.  826;  Teter  v.  Teter,  101  Ind.  129, 
51  Am.  Rep.  742 ;  Campbell's  Adm'r  v.  Gullatt,  43  Ala.  57 ;  Askew  v.  Dupree, 
30  Ga.  173;  Hargroves  v.  Thompson,  31  Miss.  211;  Stevenson  v.  Gray,  17  B. 
Mon.  (Ky.)  193;  Dumaresly  v.  Fishly,  3  A.  K.  Marsh.  (Ky.)  368;  Connors  v. 
Connors,  5  Wyo.  433,  40  Pac.  966 ;  Chapman  v.  Chapman,  11  Tex.  Civ.  App. 
392,  32  S.  W.  564;  Franklin  v.  Lee,  30  Ind.  App.  31,  62  N.  E.  78;  State  v. 
Zichfeld,  23  Nev.  304,  46  Pac.  802,  34  L.  R.  A.  784,  62  Am.  St.  Rep.  800. 
But  see,  contra,  Offield  v.  Davis.  100  Va.  25i),  40  S.  E.  910;  Smith  v.  North 
Memphis  Sav.  Bank,  115  Tenn.  12,  89  S.  W.  392. 

18  Dalrymple  v.   Dalrymple,  2  Hagg.   Consist.  54;   Van  Tuyl  v.   Van  Tuyl, 
57  Barb.  (N.  Y.)  235;  Meister  v.  Moore,  96  U.  S.  76,  24  L.  Ed.  826;  Johnson 

TIFF.P.&  D.Rel.(2d  Ed.)— 3 


34  MARRIAGE.  (CH.  1 

It  is  sometimes  said  that  a  common-law  marriage  may  be  effected 
"per  verba  de  futuro  cum  copula" — that  is  to  say,  by  an  agree- 
ment to  marry  in  the  future,  followed  by  intercourse  in  pursuance 
thereof.^®  This  is  too  broad  a  statement.  The  true  doctrine  seems 
to  be  that  an  agreement  to  marry  in  the  future,  followed  by  copu- 
la, is  at  best  only  prima  facie  evidence  of  marriage,^"  and  that  the 
prima  facie  case  may  be  rebutted  by  evidence,  circumstantial  or  oth- 
erwise, tending  to  show  that  there  was  no  present  intent  or  agree- 
ment at  the  time  of  the  copula  to  consummate  a  marriage  or  to 
convert  the  executory  agreement  into  a  present  actual  marriage. ^^ 

The  numerous  cases  in  which  the  question  of  the  validity  of  infor- 
mal marriages  has  arisen  have  turned  principally  on  matters  of  evi- 
dence, as  to  whether  the  circumstances  of  the  case  and  the  conduct 
of  the  parties  showed  present  consent. 

A  marriage  per  verba  de  prsesenti  may  be  valid,  though  no  ex- 
press words  were  used.  All  that  is  necessary  is  that  the  parties 
shall  intend  to  marry,  and  that  their  intention  shall  appear  either 
by  their  words,  or  by  their  conduct.^''  "As  the  law  stands,  a  valid 
marriage,  to  all  intents  and  purposes,  is  established  by  proof  of  an 


V.  Johnson's  Adm'r,  30  Mo.  72,  77  Am.  Dec.  598 ;  Jackson  v.  Winne,  7  Wend. 
(N.  Y.)  47,  22  Am.  Dec.  563;  Fenton  v.  Reed,  4  Johns.  (N.  Y.)  52,  4  Am. 
Dec.  244;  Bowman  v.  Bowman,  24  111.  App.  165;  Port  v.  Port,  70  111.  4S4 ; 
Dickerson  v.  Brown,  49  Miss.  357;  Guardians  of  the  Poor  v.  Nathans,  2 
Brewst.  (Pa.)  140.    And  see  the  cases  above  cited. 

i»2  Kent,  Comm.  87,  See,  also,  In  re  McCausland's  Estate,  52  Cal.  5GS, 
and  Patton  v.  Cities  of  Philadelphia  and  New  Orleans,  1  La.  Ann.  98.  In 
both  of  these  cases,  however,  there  was  evidence  of  a  present  marriage. 

20  Reg.  V.  Millis,  10  Clark  &  F.  534;  Stoltz  v.  Doering,  112  111.  234;  Peck 
V.  Peck,  12  R.  I.  485,  34  Am.  Rep.  702 ;  Port  v.  Port,  70  111.  484 ;  Cartwright 
V.  McGowu,  121  111.  388,  12  N.  E.  737,  2  Am.  St.  Rep.  105 ;  Hebblethwaite  v. 
Hepworth,  98  III.  126.  See  quotation  from  Cartwright  v.  McGown,  post,  p. 
30.  See,  also,  Duncan  v.  Duncan,  10  Ohio  St.  181,  and  Cheney  v.  Arnold,  15 
N.  Y.  345,  69  Am.  Dec.  609.  The  agreement  per  verba  de  futuro  must  be  fol- 
lowed by  cohabitation.     Soreusen  v,  Sorensen,  68  Neb.  483,  100  N.  W.  930. 

21  See  cases  cited  supra  in  note  20. 

2  2  Schouler,  Dom.  Rel.  §  26;  Dalrymple  v,  Dalrymple,  2  Hagg.  Consist,  54; 
Francis  v.  Francis,  31  Grat.  (Va.)  283;  Hicks  v.  Cochran,  4  Edw.  Ch.  (N,  Y.) 
107;  Van  Tuyl  v.  Van  Tuyl,  57  Barb.  (N.  Y.)  237;  Dickerson  v.  Brown,  49^ 
Miss.  357;  Bowman  v.  Bowman,  24  111.  App.  165;  Gise  v.  Com.,  81  Pa.  428; 
Guardians  of  the  Poor  v.  Nathans,  2  Brewst.  (Pa.)  149;  In  re  Wells'  Estate, 
123  App.  Div.  79,  108  N.  Y.  Supp.  164;  State  V.  Hansbrough,  181  Mo,  348, 
80  S.  W.  900. 


§§   19-21)  FORMALITIES   IN    CELEBRATION.  35 

actual  contract  per  verba  de  prassenti  between  persons  of  opposite 
sexes,  capable  of  contracting,  to  take  each  other  for  husband  and 
wife;  especially  where  the  contract  is  followed  by  cohabitation.  No 
solemnization  or  other  formality,  apart  from  the  agreement  itself, 
is  necessary.  Nor  is  it  essential  to  the  validity  of  the  contract 
that  it  should  be  made  before  witnesses."  ^^  The  agreement  be- 
ing the  essential  element  in  these  marriages,  it  may,  like  other 
agreements,  be  proven  by  conduct,  as  well  as  by  words,  and  by 
the  testimony  of  the  parties  themselves,  as  well  as  by  the  testi- 
mony of  third  persons. 

When  the  consent  to  marry  is  manifested  by  words  de  praesenti, 
a  present  assumption  of  the  marriage  status  is  necessary.-*  This 
applies  in  all  cases — not  only  where  there  are  verba  de  praesenti 
without  copula,  but  also  where  there  is  copula  following  an  en- 
gagement to  marry.  The  marriage  must  be  consummated  at  the 
time  of  the  agreement,  and  not  be  left  for  the  future.  It  is  not  suf- 
ficient to  agree  to  present  cohabitation,  and  a  future  regular  mar- 
riage when  more  convenient,  or  when  a  husband  or  wife  shall  die, 
or  when  a  license  can  be  obtained,  or  a  ceremony  can  be  performed ; 
but  there  must  be  a  present  marriage  by  the  agreement. ^^  Though 
a  present  assumption  of  the  marriage  status  is  necessary  to  con- 
stitute a  valid  common-law  marriage,  it  must  not  be  supposed  that 
intercourse  is  necessary.  The  marriage  need  not  be  consummated 
by  intercourse,   for  consensus,  non  concubitus,  facit  matrimonium.-* 

It  is  a  question  of  fact,  to  be  determined  from  all  the  circum- 
stances of  each  case,  whether  the  parties  intended  marriage  or  not. 
"A    mere    carnal    commerce,    without    the    intention    of    cohabiting 


2  3  Van  Tuyl  v.  Van  Tuyl,  57  Barb.  (N.  Y.)  237. 

24  Cartwright  v.  McGown,  121  111.  388,  12  N.  B.  739,  2  Am.  St.  Rep.  105 ; 
Hawkins  v.  Hawkins,  142  Ala.  571,  38  South.  640,  110  Am.  St.  Rep.  53. 

25  Cartwright  v.  McGown,  121  111.  388,  12  N.  E.  730,  2  Am.  St.  Rep.  105; 
In  re  Maher's  Estate,  204  111.  25,  G8  N.  E.  159;  Reg.  v.  Millis,  10  Clark  & 
F.  534;  Robertson  v.  State,  42  Ala.  509;  Clark  v.  Field,  13  Vt.  460;  Duncan 
V.  Duncan,  10  Ohio  St.  182;  Peck  v.  Peck,  12  R.  I.  485,  34  Am.  Rep.  702; 
Beverson's  Estate,  47  Cal.  621 ;  Fryer  v.  Fryer,  Rich.  Eq.  Cas.  (S.  C.)  85 ; 
Van  Tuyl  v.  Van  Tuyl,  57  Barb.  (N.  Y.)  235. 

28  Shelf,  Mar.  &  Div.  5-7;  Dalrymple  v,  Dalrymple,  2  Hagg.  Consist  54; 
Jackson  v.  Winne,  7  Wend.  (N.  Y.)  47,  22  Am.  Dec.  563;  Dumaresly  v.  Fishly, 
3  A.  K.  Marsh.  (Ky.)  368;  Port  v.  Port,  70  111.  484;  Peck  v.  Peck,  12  R.  I. 
485,  34  Am.  Rep.  702;  Hebblethwaite  v.  Hepworth,  98  111.  126 ;  Hilton  v.  Roy- 
lance,  25  Utah,  129,  69  Pac.  660,  58  L.  R.  A.  723,  95  Am.  St.  Rep.  821. 


36  MARRIAGE.  (Ch.   1 

and  training  up  children,  would  not  constitute  marriage  under  any 
circumstances."  ^^  But  the  presumption  is  always  in  favor  of  mar- 
riage, and  acts  and  conduct  which  have  the  appearance  of  marriage 
will  be  construed  as  such,  unless  there  are  circumstances  which 
preclude  that  construction."  So,  if  two  persons  live  together  as 
husband  and  wife,  holding  themselves  out.  to  the  public  as  such, 
and  gain  the  reputation  in  the  community  of  being  married,  this 
is  very  generally  accepted  as  prima  facie  proof  of  marriage.^' 
"Where  parties  competent  to  contract  have  agreed  to  marry  at  some 
future  time,  if  they  have  copula,  which  is  lawful  only  in  the  married 
state,  in  the  absence  of  any  evidence  to  the  contrary,  they  will  be 
presumed  to  have  become  actually  married  by  taking  each  other 
for  husband  and  wife,  and  to  have  changed  their  future  promise 
to  marry  to  one  of  present  marriage.  In  such  a  case  the  copula 
will  be  presumed  to  have  been  allowed  on  the  faith  of  the  mar- 
riage promise,  and  that  the  parties  at  the  time  of  such  copula  ac- 
cepted each  other  as  man  and  wife."^°  This  kind  of  marriage 
must  be  distinguished  from  cases  of  seduction  or  sexual  intercourse 

27  Lindo  V.  Belisario,  1  Hagg.  Consist.  216;  Com.  v.  Stump,  53  Pa.  132,  91 
Am.  Dec.  19S ;  Van  Tuyl  v.  Van  Tuyl,  57  Barb.  (N.  Y.)  235 ;  State  v.  Kennedy, 
207  Mo.  528,  106  S.  W.  57 ;  Taylor  v.  Taylor,  10  Colo.  App.  303,  50  Pae.  1040; 
Lee  V.  State,  44  Tex.  Cr.  R.  354,  72  S.  W.  1005,  61  L.  R.  A.  904. 

2  8  Piers  V.  Piers,  2  H.  L.  Cas.  331;  Teter  v.  Teter,  101  Ind.  129,  51  Am. 
Rep.  742 ;  Dickerson  v.  Brown,  49  Miss.  357 ;  State  v.  Wortbingham,  23  Minn. 
528;  Hynes  v.  McDermott,  91  N.  Y.  451,  43  Am.  Rep.  677;  Guardians  of  the 
Poor  V.  Nathans,  2  Brewst.  (Pa.)  149;  Blancbard  v.  Lambert,  43  Iowa,  228, 

22  Am.  Rep.  245. 

29  1  Fraser,  Dom.  Rel.  113 ;  De  Thoren  v.  Attorney  General,  1  App.  Cas. 
686;  Davis  v.  Pryor,  112  Fed.  274,  50  O.  C.  A.  579;  Gall  v.  Gall,  114  N.  Y. 
109,  21  N.  E.  106;  Plattner  v.  Plattner,  116  Mo.  App.  405,  91  S.  W.  457;  Cram- 
sey  V.  Sterling,  111  App.  Div.  568,  97  N.  Y.  Supp.  1082;  Eames  v.  Woodson, 
120  La.  1031,  46  South.  13;  Green  v.  State,  59  Ala.  68;  Lowry  v.  Coster, 
91  111.  182 ;  Proctor  v.  Bigelow,  38  Mich.  282 ;  Redgrave  v.  Redgrave,  38  Md. 
93 ;  Jones  v.  Reddick,  79  N.  C.  290;  Com.  v.  Stump,  53  Pa.  132,  91  Am.  Dec. 
198 ;  Ilieks  v.  Cochran,  4  Edw.  Oh.  (N.  Y.)  107;  White  v.  White,  82  Cal.  427, 

23  Pac.  276,  7  L.  R.  A.  799 ;  Richard  v.  Brehm,  73  Pa.  140,  13  Am.  Rep.  733 ; 
Fornsblll  v.  Murray,  1  Bland  (Md.)  479,  18  Am.  Dec.  344;  Taylor  v.  Swett, 
3  La.  33,  22  Am.  Dec.  156 ;  Arthur  v.  Broaduas,  3  Ala.  557,  37  Am,  Dec.  707 ; 
Chiles  V.  Drake,  2  Mete.  (Ky.)  146,  74  Am.  Dec.  406;  Allen  v.  Hall,  2  Nott 
&  McC.  (S.  C.)  114,  10  Am.  Dec.  578;  Holmes  v.  Holmes,  6  La.  463,  26  Am. 
Dec.  4S2;  Sneed  v.  Ewing,  5  J.  J.  Marsh.  (Ky.)  460,  22  Am.  Dec.  41;  Steven- 
son's Heirs  v.  McReary,  12  Smedes  &  M.  (Miss.)  9,  51  Am.  Dec.  102. 

80  Cartwright  v.  McGown,  121  111.  388,  12  N.  E.  737,  2  Am.  St,  Rep,  105. 


§§    19-21)  FORMALITIES   IN    CELEBRATION.  37 

followed  by  a  promise  of  marriage  in  cases  where  the  intercourse 
is  illicit  in  its  inception,  and  is  known  to  be  such.  In  such  cases,  as 
we  shall  presently  see,  the  presumption  is  in  favor  of  the  continu- 
ance of  illicit  intercourse.^^ 

The  presumption  of  marriage  from  cohabitation  and  reputation 
may  always  be  rebutted,  even  where  it  can  be  shown  that  there 
was  an  agreement  to  marry  in  the  future,  and  that  the  cohabitation 
began  subsequent  to  this  agreement,  for  an  executory  contract  to 
marry  cannot  become  consummated  by  copula  unless  the  parties 
so  intend.'^  The  presumption  is  rebutted,  for  instance,  by  proof 
that  the  parties  separated  without  any  apparent  cause,  and  one  of 
them  married  some  other  person.^ ^  No  presumption  of  marriage 
can  arise  from  the  continuance  of  cohabitation  known  to  be  mere- 
tricious or  adulterous  in  its  inception,  the  presumption  being  that 
it  continued  so;  and  the  burden  is  on  the  one  who  claims  that  there 
has  been  an  informal  marriage  to  show  an  agreement  between  the 
parties.^*  "If  the  cohabitation  was  in  its  inception  illicit,  the  pre- 
sumption of  the  innocence   and  morality  of  the  parties   is  at  once 

81  Note  34,  infra. 

3  2  Forbes  v.  Ck)untess  of  Stratbmore,  Ferg.  Const.  113;  Reg.  v.  Millis,  10 
Clark  &  F.  534,  782;  Robertson  v.  State,  42  Ala.  509;  Port  v.  Port,  70  111.  484; 
Jackson  v.  Winne,  7  Wend.  (N.  Y.)  47,  22  Am.  Dec.  563 ;  Peck  v.  Peck,  12  R, 
I.  488,  34  Am.  Rep.  702;  Stoltz  v.  Doerlng,  112  111.  234;  Hebblethwaite  v 
Hepworth,  98  111.  126;  Dumaresly  v.  Fishly,  3  A.  K.  Marsh.  (Ky.)  368;  SbaroD 
V.  Sharon,  79  Cal.  633,  22  Pac.  26;  Van  Tuyl  v.  Van  Tuyl,  57  Barb.  (N.  Y.) 
235;  Fames  v.  Woodson,  120  La.  1031,  46  South.  13;  Nelson  v.  Carlson,  48 
Wash.  651,  94  Pac.  477. 

3  3  Weatherford  v.  Weatherford,  20  Ala.  548,  56  Am.  Dec.  206 ;  Jones  v. 
Jones,  48  Md.  391,  30  Am.  Rep.  466. 

34  Cartwright  v.  McGown,  121  111.  388,  12  N.  E.  737,  2  Am.  St.  Rep.  105 ; 
Duncan  v.  Duncan,  10  Ohio  St.  181 ;  Cheney  v.  Arnold,  15  N.  Y.  345,  69  Am. 
Dec.  609;  Floyd  v.  Calvert,  53  Miss.  37;  Randlett  v.  Rice,  141  Mass.  385,  6 
N.  E.  238;  Harbeck  v.  Harbeck,  102  N.  Y.  714,  7  N.  E.  408;  Appeal  of  Read- 
ing Fire  Ins.  &  Trust  Co.,  113  Pa.  204,  6  Atl.  62,  57  Am.  Rep.  448;  In  re 
Gall's  Will,  9  N.  Y.  Supp.  466,  2  Con.  Sur.  286 ;  Cram  v.  Burnham,  5  Greenl. 
(Me.)  213,  17  Am.  Dec.  218 ;  Peck  v.  Peck,  12  R.  I.  485,  34  Am.  Rep.  702 ;  Port 
.V.  Port,  70  111.  484;  Stans  v.  Baitey,  9  Wash.  115,  37  Pac.  316;  Van  Dusan 
V.  Van  Dusan,  97  Mich.  70,  56  N.  W.  234;  Pearce  v.  Pearce,  16  S.  W.  271, 
13  Ky.  Law  Rep.  67;  DraAvdy  v.  Hesters,  130  Ga.  161,  60  S.  EI  451,  15  L. 
R,  A.  (N.  S.)  190;  Adger  v.  Ackerman,  115  Fed.  124,  52  C.  C.  A.  568;  Pike 
V.  Pike,  112  111.  App.  243;  Marks  v.  Marks,  108  111.  App.  371;  Bell  v.  Clarke, 
45  Misc.  Rep.  272,  92  N.  Y.  Supp.  163.  But  see  Darling  v.  Dent,  82  Ark.  76. 
100  S.  W.  747. 


38  MARRIAGE.  (Ch.  1 

rebutted  and  overcome;  and,  without  proof  of  a  change  in  their 
relation  to  each  other,  it  will  be  presumed  that  this  continuance 
of  the  connection  of  the  parties  is  of  the  same  character."  *" 


ANNULMENT  AND   AVOIDANCE  OF  MARRIAGES. 

22.  Where   a   marriage   is   absolutely   void,   a   suit  to   annul   it  is   not 

necessary;  but  such  a  suit  vrill  lie,  and  is  advisable,  in  order 
to  have  the  invalidity  of  the  marriage  determined  judicially. 

23.  Where  a  marriage,  though  not  absolutely  void,  is  voidable  by  the 

act  of  the  parties,  or  one  of  them,  as  in  case  of  nonage,  fraud, 
duress  etc.,  a  suit  to  annul  the  marriage  is  not  necessary;  but 
it  may  be  brought,  as  in  the  case  of  a  void  marriage,  and  is 
advisable. 

24.  In    other    cases    of   voidable   marriage,    a   suit   to   annul   the   mar- 

riage is  necessary.      It  cannot  be  attacked  collaterally. 

25.  If  a  marriage  is  absolutely  void,  it  may  be  annulled  at  any  time, 

and  may  be  attacked  collaterally  as  ivell  as  directly,  and  by 
third  persons  as  \crell  as  by  the  parties.  But  if  a  marriage 
is  merely  voidable,  it  must  be  annulled,  if  at  all,  in  the  life- 
time  of  the  parties. 

26.  Annulment  of  a  voidable  marriage  renders  it  void  ab  initio,  un- 

less it  is  othervrise  provided  by  statute. 

Suits  to  annul  a  marriage  must  be  distinguished  from  suits  for  a 
divorce,  which  will  be  considered  in  a  subsequent  chapter.  A  suit 
for  a  divorce  supposes  the  existence  of  a  valid  marriage,  and  a 
decree  of  divorce  annuls  existing  rights.  A  suit  for  nullity  of  a 
marriage,  on  the  other  hand,  is  on  the  theory  that  there  is  no  valid 
marriage  at  all,  and  a  decree  of  nullity  declares  that  rights  supposed 
to  have  arisen  from  the  attempted  marriage  never  in  fact  existed. 
A  decree  of  divorce  annuls  a  marriage  only  from  the  time  it  is 
entered.  A  decree  of  nullity,  unless  a  contrary  rule  is  established 
by  statute,  annuls  the  marriage  ab  initio,  and,  in  effect,  declares 
that  there  never  has  been  any  marriage.^*  Nevertheless  in  a  prop- 
er case  a  decree  annulling  a  marriage  may  be  entered  when  the  re- 

85  Cartwright  v.  McGown,  121  111.  388,  12  N.  E.  737,  2  Am.  SL  Rep.  105. 

8  6  stew.  Mar.  &  Div.  §  141;  Kawdon  v.  Rawdon,  28  Ala.  565;  Powell  v. 
Powell,  IS  Kan.  371,  26  Am.  Rep.  774 ;  Succession  of  Minvielle,  15  La.  Ann. 
342;  Lincoln  v.  Lincoln,  6  Rob.  (N.  Y.)  525;  Wightraanv.  Wightman,  4  Johns. 
Ch.  (N.  Y.)  343;  Smith  v.  Morehead,  59  N.  C.  360;  Patterson  y.  Gaines,  6 
How.  550,  582,  12  L.  Ed.  553. 


§§    22-26)         ANNULMENT   AND    AVOIDANCE    OF   MARRIAGES.  39 

lief  asked  is  divorce,  or  under  proper  allegations  by  way  of  answer 
or  cross-bill  in  a  suit  for  divorce.*^ 

As  has  been  heretofore  shown,  a  marriage  may  be  absolutely  void, 
or  it  may  be  voidable.  And  voidable  marriages  may  be  voidable  by 
the  act  of  the  parties  themselves,  without  going  into  court  and 
obtaining  a  decree  of  nullity;  or  they  may  be  voidable  only  by  a 
decree  of  the  court,  according  to  the  ground  of  objection.  Thus  a 
marriage  between  persons,  one  of  whom  has  a  spouse  under  a  prior, 
valid,  and  undissolved  marriage,  still  living,  is  not  merely  voidable, 
but  absolutely  void.  The  same  is  true  generally  of  a  marriage  be- 
tween persons  under  the  disability  of  civil  conditions,  and  of  mar- 
riage by  a  child  under  seven  years  of  age.  On  the  other  hand,  a 
marriage  between  persons  within  the  prohibited  degrees  of  relation- 
ship is  not  void,  but  voidable,  and  is  voidable  by  a  decree  of  the 
court  only,  and  not  by  the  mere  act  of  the  parties  themselves.  The 
same  is  true  of  marriages  voidable  because  of  impotence.  Again, 
there  are  some  marriages  that  are  voidable  by  the  mere  act  of  one 
or  of  both  of  the  parties,  without  the  necessity  for  intervention  of 
the  court  by  decree  of  nullity ;  and  there  are  some  marriages  which 
are  voidable  in  this  way  at  the  option  of  one  of  the  parties  only, 
the  other  party  having  no  right  to  avoid  it.  Thus,  as  has  been 
shown,  where  one  of  the  parties  is  under  the  age  of  consent,  and 
above  the  age  of  seven,  the  marriage  is  not  absolutely  void,  but  is 
voidable  by  the  act  of  the  parties.  Either  party  may  avoid  it  by 
repudiating  it,  without  going  into  court  and  obtaining  a  decree  of 
nullity.  In  such  a  case  the  marriage  is  voidable  by  either  party, 
though  one  of  them  may  have  been  above  the  age  of  consent  when 
it  took  place;  and  it  is  voidable  at  any  time,  whether  before  or 
after  reaching  the  age  of  consent,  so  long  as  it  has  not  been  recog- 
nized and  ratified.  If  ratified  after  reaching  the  age  of  consent,  it  is 
absolutely  binding,  and  no  longer  voidable.  So  where  one  of  the 
parties  was  induced  to  enter  into  a  marriage  by  fraud  or  duress,  so 
that  it  is  invalid,  it  is  not  absolutely  void,  but  voidable  merely;  but 
it  is  voidable  by  the  mere  act  of  the  party  deceived  or  coerced,  with- 
out the  necessity  for  a  decree  of  nullity.  The  marriage  is  voidable 
at  the  option  of  the  party  deceived  or  coerced  only,  and  cannot  be 
avoided  by  the  other  party,  nor  by  third  persons.     Nor  can  it  be 

8T  Bassett  v.   Bassett,  9   Bush  (Ky.)   6i)6;   Nadra  v.   Nadra,   79  Mich.  591, 
44  N.  W.  104G ;  Taylor  v.  Taylor,  173  N.  Y.  26G,  65  N.  E.  1098. 


40  MARRIAGE.  (Ch.  1 

avoided  by  the  party  deceived  or  coerced,  if,  after  discovery  of  the 
fraud,  or  after  being  reheved  from  the  duress,  he  ratified  it.  After 
ratification  it  is  absolutely  binding  on  both  parties.  What  has  been 
said  applies  also  to  marriages  entered  into  under  such  a  mistake  as 
renders  it  voidable.  And,  as  has  been  seen,  there  is  some  authority 
for  applying  the  doctrine  to  marriages  entered  into  by  a  lunatic  or 
idiot,  though,  by  the  weight  of  authority,  such  marriages  are  not 
merely  voidable,  but  absolutely  void. 

Where  a  marriage  is  merely  voidable,  and  voidable  by  a  decree 
of  nullity  only,  it  is  valid,  unless  a  decree  is  obtained ;  and  the  decree 
must  be  made,  if  at  all,  during  the  lives  of  both  parties.^®  Until 
it  is  made,  the  marriage  is  valid  for  all  purposes.'®  The  children 
are  legitimate ;  *"  the  parties  are  entitled,  respectively,  to  curtesy 
and  dower;  and  all  the  other  incidents  of  a  valid  marriage  attach.*^ 
After  a  decree  of  nullity,  however,  in  the  lifetime  of  the  parties,  the 
marriage  is  void  ab  initio,  and  not  merely  from  the  date  of  the 
decree.*'^  The  children  are  rendered  illegitimate,*'  the  parties  have 
no  rights  in  each  other's  property,**  and  communications  former- 
ly made  between  them  are  no  longer  privileged.* °  In  other  words, 
it  is  just  as  if  no  marriage  had  ever  taken  place.     The  same  doc- 


88  1  Bl.  Comm.  434;   Bonham   v.   Badgley,  2  Gilman   (111.)   622;   Cavell   rt^ 
Prince,  L.  R.  1  Exch.  246 ;  White  v.  Lowe,  1  Redf.  Sur.  (N.  Y.)  376 ;  Harrison 
V.  State,  22  Md.  468,  85  Am.  Dec.  658;  Combs  v.  Combs,  17  Abb.  N.  C.  (N.  Y.) 
265;  Gatbings  v.  Williams,  27  N.  C.  487,  44  Am.  Dec.  49;  Fornsbill  v.  Mur- 
ray, 1  Bland  (Md.)  479,  18  Am.  Dec.  344. 

89  Elliott  V.  Gurr,  2  Pbillim.  Ecc.  16. 

40  2  Bum.  Ecc.  Law  (Pbillim.  Ed.)  tit.  "Marriage";  1  Bish.  Mar.,  Div.  & 
Sep.  §  272. 

411  Bl.  Comm.  434;  Bennington  v.  Cole,  Noy,  29. 

42  Augbtie  V.  Augbtie,  1  Pbillim.  Ecc.  201 ;  Perry  v.  Perry,  2  Paige  (N. 
Y.)  501. 

4  3  Augbtie  V.  Augbtie,  1  Pbillim.  E-cc.  201.  The  common-law  rule  has  been 
changed  by  statute  in  many  states.  See  post  p.  236.  As  to  custody  and  sup- 
port of  children,  after  decree  of  nullity,  see  Mickels  v.  Fennell,  15  N.  D.  188, 
107  N.  W.  53. 

44  Augbtie  V.  Augbtie,  1  Pbillim.  Ecc.  201;  Kelly  v.  Scott,  5  Grat.  (Va.) 
479;  Sellars  v.  Davis,  4  Yerg.  (Tenn.)  503.  The  court  has  authority,  in  a 
decree  of  nullity,  to  make  an  equitable  division  of  property  jointly  accumu- 
lated by  the  parties  while  they  lived  together  as  husband  and  wife.  Werner 
V.  Werner,  59  Kan.  399,  53  Pac.  127,  41  L.  B.  A.  349,  68  Am.  St  Rep.  372. 

46  Wells  V.  Fletcher,  5  Car.  &  P.  12. 


§§   22-26)         ANNULMENT  AND  AVOIDANCE   OF   MARRIAGES.  41 

trines  apply  to  a  great  extent  to  marriages  voidable  by  the  act  of 
the  parties,  without  a  decree  of  nullity. 

Where  a  marriage  is  absolutely  void,  and  not  merely  voidable, 
a  suit  to  annul  it  is  not  necessary.  The  question  of  its  validity  may 
be  raised  at  any  time,  either  before  or  after  the  death  of  the  parties, 
or  of  either  of  them,  and  collaterally  as  well  as  directly,  and  by 
strangers  as  well  as  by  the  parties  themselves.'*'  No  rights  what- 
ever can  arise  out  of  a  marriage  that  is  absolutely  void. 

In  many  respects  the  doctrines  above  stated  have  been  changed 
by  statutes  in  the  different  states,  and  it  is  never  safe  to  assume 
that  the  common-law  rules  are  in  force,  without  first  consulting  the 
statute.*^ 

The  fact  that  a  marriage  is  absolutely  void,  or  is  voidable  by  the 
act  of  the  parties  themselves,  does  not  prevent  the  bringing  of  a 
suit  to  have  it  annulled,  for  the  purpose  of  having  its  invalidity 
judicially  established,  and  to  fix  the  status  of  the  parties.  Such 
a  suit  is  always  advisable.  As  was  said  by  Chancellor  Kent, 
"Though  marriage  with  an  idiot  or  lunatic  be  absolutely  void,  and 
no  sentence  of  avoidance  be  absolutely  necessary,  yet,  as  well  for 
the  sake  of  the  good  order  of  society  as  for  the  peace  of  mind  of  all 
persons  concerned,  it  is  expedient  that  the  nullity  of  the  marriage 
should  be  ascertained  and  declared  by  the  decree  of  a  court  of  com- 
^petent  jurisdiction."  *® 


48  Shelf.  Mar.  &  Div.  479;  1  Bish.  Mar.,  Div.  &  Sep.  §  258;  Cartwright 
V.  McGowD,  121  111.  388,  12  N.  E.  737,  2  Am.  St.  Rep.  105;  Wilson  v.  Brock- 
ley,  1  Pliillim.  Ecc.  132;  Ferlat  v.  Gojon,  Hopk.  Ch.  (N.  Y.)  478,  493,  14  Am. 
Dec.  554;  Reeves  v.  Reeves,  54  111.  332;  Hantz  v.  Sealy,  6  Bin.  (Pa.)  405; 
Gathings  v.  Williams,  27  N.  C.  487,  44  Am.  Dec.  49;  Hemming  v.  Price,  12 
Mod.  432;  Tefft  v.  Tefft,  35  Ind.  44;  Patterson  v.  Gaines,  6  How.  550,  592,  12 
L.  Ed.  553;  Fornshill  v.  Murray,  1  Bland  (Md.)  479,  18  Am.  Dec.  344;  Town 
of  Mountholly  v.  Town  of  Andover,  11  Vt.  226,  34  Am.  Dec.  685;  Rawdon 
V.  Rawdon,  28  Ala.  565 ;  Inhabitants  of  Middleborough  v.  Inhabitants  of 
Rochester,  12  Mass.  363;  Higgins  v.  Breen,  9  Mo.  497;  Smart  v.  Whaley,  6 
Smedes  &  M.  (Miss.)  308 ;  Inhabitants  of  Unity  v.  Inhabitants  of  Belgrade, 
76  Me.  419 ;  Williams  v.  State,  44  Ala.  24.  But  see  Fero  v.  Fero,  62  App.  Div. 
470,  70  N.  Y.  Supp.  742,  and  Wood  v.  Baker,  43  Misc.  Rep.  310,  88  N.  Y. 
Supp.  854,  holding  that,  in  a  suit  by  a  parent  to  annul  the  marriage  of  a 
minor  child,  the  latter  must  be  made  a  party. 

4  7  As  to  the  construction  of  statutes,  see  post,  p.  40. 

48  2  Kent,  Comm.  76;  Hayes  v.  Watts,  3  Phillim.  Ecc.  44;  Pertreis  v.  Ton- 
dear,  1  Hagg.  Consist.  138 ;    Crump  v.  Morgan,  38  N.  C.  91,  40  Am.  Dec.  447. 


42  MARRIAGE.  (Ch.  1 

Jurisdiction. 

Since  no  courts  in  the  United  States  have  succeeded  to  the  ju- 
risdiction of  the  ecclesiastical  courts/*  and  even  courts  of  equity, 
as  such,  have  no  jurisdiction  in  cases  of  canonical  disabilities, ^° 
suits  to  annul  a  marriage  on  these  grounds  depend  entirely  upon 
statutes  in  this  country;  and  the  same  has  been  held  to  be  true  in 
case  of  prior  marriage  of  one  of  the  parties."  Most  states  have 
statutes  giving  jurisdiction  in  suits  for  nullity  of  marriage  on  the 
ground  of  consanguinity,  but  not  expressly  on  the  ground  of  impo- 
tence." Impotence,  however,  is  made  a  ground  for  divorce  in 
most  states,  and  it  has  been  held  by  some  courts  that  jurisdiction 
of  suits  for  nullity  on  account  of  impotence  is  impliedly  conferred 
with  the  divorce  jurisdiction,  divorce  being  broadly  construed  to 
include  nullity.^^ 

Where  a  marriage  is  invalid  on  other  grounds  than  because  of 
canonical  disabilities,  as  on  the  ground  of  want  of  consent,  arising 
from  insanity,  fraud,  duress,  mistake,  or  any  other  cause,  or  perhaps 
on  the  ground  of  some  civil  disability,  like  prior  marriage,  civil  con- 
dition, or  nonage,  or  on  the  ground  of  illegal  celebration,  it  is  held 
in  this  country  that  a  suit  to  annul  the  marriage  will  lie,  independ- 
ently of  any  statutory  authority  therefor.  Such  suits  are  held  to 
be  within  the  ordinary  jurisdiction  of  courts  of  equity.''* 

49  Anon.,  24  N.  J.  Eq.  19;  Peugnet  v.  Phelps,  48  Barb.  (N.  T.)  566;  Burtis 
V.  Burtis,  Hopk.  Ch.  (N.  Y.)  557,  565,  14  Am.  Dec.  563;  Perry  v.  Perry,  2 
Paige  (N.  Y.)  501;  Bowers  v.  Bowers,  10  Rich.  Eq.  (S.  C.)  551,  73  Am.  Dec. 
90;    Le  Barron  v.  Le  Barron,  35  Vt.  365. 

50  Anon.,  24  N.  J.  Eq.  19 ;  Burtis  v.  Burtis,  Hopk.  Ch.  (N.  Y.)  557,  565,  14 
Am.  Dec.  563;    Bowers  v.  Bowers.  10  Rich.  Eq.  (S.  C.)  551,  73  Am.  Dec.  99. 

51  Kelley  v.  Kelley,  161  Mass.  Ill,  36  N.  E.  837,  25  L.  R.  A.  806,  42  Am.  St. 
Rep.  389. 

6  2  stim.  Am.  St.  Law,  §  6112. 

0  3  Stim.  Am.  St.  Law,  §  6113 ;  Mattison  v.  Mattison,  1  Strobh.  Eq.  (S.  C.) 
387;  Johnson  v.  Klncade,  37  N.  C.  470;  Le  Barron  v.  Le  Barron,  35  Vt.  363; 
Head  v.  Head,  2  Ga.  191;  Hamaker  v.  Hamaker,  18  111.  137;  Chase  v.  Chase, 
55  Me.  21 ;  J.  G.  v.  H.  G„  33  Md.  401,  3  Am.  Rep.  183 ;  Bascomb  v.  Bascomb, 
25  N.  H.  267. 

54Kawdon  v.  Rawdon,  28  Ala.  565,  567;  Tefft  v.  Tefft,  35  Ind.  44,  50; 
Powell  V.  Powell,  18  Kan.  371,  373,  26  Am.  Rep.  774;  Bassett  v,  Bassett,  9 
Bush  (Ky.)  696,  697 ;  Fornshill  v.  Murray,  1  Bland  (Md.)  479,  483,  18  Am.  Dec. 
344;  Helms  v.  Franciscus,  2  Bland  (Md.)  544,  579,  20  Am.  Dec.  402;  True  v. 
Ranney,  21  N.  H.  52,  53,  53  Am.  Rep.  164;  Keyes  v.  Keyes,  22  N.  H.  553, 
558;    McClurg  v.  Terry,  21  N.  J.  Eq.  226,  229;    Anon.,  24  N.  J.  Eq.  19,  20; 


§    27)  POWER   OF   LEGISLATURE   TO    VALIDATE    MARRIAGE.  43 


POAVER    OF    LEGISLATURE    TO    VALIDATE    MARRIAGE. 

27.  As  the  state  lias  power  to  regulate  and  control  marriages  be- 
tween its  oxnx  citizens,  the  Legislature  may  confirm  and  make 
valid   marriages   which  were   before  voidable. 

Marriage,  since  it  creates  the  most  important  relation  in  life,  and 
is  most  closely  interwoven  with  the  very  fabric  of  society,  has  al- 
ways been  subject  to  regulation  and  control  by  the  state  ;^'^  and  it 
is  well  settled  that  the  Legislature  has  power  to  validate  or  confirm 
by  statute  a  marriage  theretofore  voidable  because  of  some  statu- 
tory disability  or  neglect  of  some  statutory  requirement.  This  ques- 
tion arose,  and  was  carefully  considered  by  the  Court  of  Appeals 
of  Maryland,  in  Harrison  v.  State,^®  where  the  validity  of  a  stat- 
ute validating  marriages  between  persons  related  within  the  prohib- 
ited degrees  of  consanguinity  and  affinity,  and  which  were  before 
voidable,  was  attacked  as  unconstitutional  as  applied  to  prior  mar- 
riages. The  act  was  upheld,  however,  as  a  valid  exercise  of  legis- 
lative power,  like  special  acts  of  divorce.  There  are  decisions  in 
many  of  the  other  states  to  the  same  effect." 

Carris  v.  Carris,  Id.  516;  Selah  v.  Selah,  23  N.  J.  Eq.  185;  Avakian  v.  Avak- 
ian,  69  N.  J.  Eq.  89,  60  Atl.  521;  Wightman  v.  Wightman,  4  Johns.  Ch.  (N. 
Y.)  343,  345 ;  Burtis  v.  Burtis,  Hopk.  Ch.  (N.  Y.)  557,  567,  14  Am.  Dec.  563 ; 
Ferlat  v.  Gojon,  Hopk.  Ch.  (N.  Y.)  478,  494,  14  Am.  Dec.  554;  Perry  v.  Perry, 
2  Paige  (N.  Y.)  501,  503 ;  Scott  v.  Shufeldt,  5  Paige  (N.  Y.)  43.  44 ;  Johnson 
V.  Kincade,  37  N.  C.  470,  475;  Crump  v.  Morgan,  38  N.  C.  91,  98,  40  Am.  Dec. 
447;  Waymire  v.  Jetmore,  22  Ohio  St.  271,  274;  Jelineau  v.  Jelineau,  2 
Desaus.  (S.  C.)  45,  50;  Almond  v.  Almond,  4  Rand.  (Va.)  662,  666,  15  Am. 
Dec.  781;  Clark  v.  Field,  13  Vt.  460,  465;  Le  Barron  v.  Le  Barron,  35  Vt. 
305,  366.  But  see  Pitcairn  v.  Pitcairn,  201  Pa.  368,  50  Atl.  963,  holding  that 
Pennsylvania  courts  have  no  jurisdiction  to  determine  the  validity  of  a  mar- 
riage alleged  to  be  void  on  account  of  lunacy  of  one  of  the  contracting  par- 
ties, since  this  power  has  never  been  conferred  on  them  by  statute. 

esMaynard  v.  Hill,  125  U.  S.  190,  8  Sup.  Ct.  723,  31  L.  Ed.  654;  Andrews 
V.  Andrews,  188  U.  S.  14,  30,  23  Sup.  Ct.  237,  47  L.  Ed.  366. 

5  0  22  Md.  408,  85  Am.  Dec.  65S.  "Such  legislation,"  it  was  said,  "is  neither 
extraordinary,  unconstitutional,  nor  imjust,  but  conservative,  essential,  and 
salutary;  being  the  only  adequate  means  of  healing  or  preventing  inevitable 
wrongs,  public  and  private." 

6  7  Inhabitants  of  Town  of  Goshen  v.  Inhabitants  of  Stonington,  4  Conn. 
209,  10  Am.  Dec.  121 ;  Baity  v.  Craufill,  91  N.  C.  2fJ3,  49  Am.  Rep.  641;  Moore 
V.  Whitaker,  2  Har.  (Del.)  50. 


44  MARRIAGE.  (Ch.  1 


PRESUMPTION   AND   BURDEN   OF   PROOF. 

28.   A  marriage  is  presumed  to  be  valid  until  the  contrary  is  made 
to   appear. 

When  the  celebration  of  a  marriage  is  once  shown,  the  law  will 
presume,  in  the  absence  of  evidence  to  the  contrary,  the  mutual 
consent  of  the  parties,  the  reality  of  consent,  the  capacity  of  the 
parties,  and  in  fact  everything  essential  to  the  vaHdity  of  the  mar- 
riage, and  the  burden  of  proving  facts  rendering  it  invalid  is  upon 
him  who  seeks  to  avoid  it."^^ 

Since,  therefore,  the  presumption  is  always  in  favor  of  the  valid- 
ity of  a  marriage,  a  person  who  attacks  a  marriage  as  invalid  on 
the  ground  that  one  of  the  parties  had  been  previously  married 
to  another  person  "does  not  fully  meet  the  burden  of  proof  that  is 
upon  him  by  showing  that  there  was  a  former  valid  marriage  as  he 
contends ;  but  he  must  go  further,  and  show  affirmatively  that  the 
marriage  had  not  been  dissolved,  either  by  the  death  of  the  other 
party,  or  by  a  decree  of  divorce.  Death  of  the  former  spouse,  or 
a  divorce,  will  be  presumed,  unless  the  contrary  is  made  to  ap- 
pear, and  the  burden  is  on  the  person  attacking  the  second  mar- 
riage to  rebut  this  presumption.^"  "When  it  is  shown  that  a  mar- 
riage has  been  consummated  in  accordance  with  the  forms  of  law, 
it  is  to  be  presumed  that  no  legal  impediments  existed  to  their  en- 
tering into  matrimonial  relations;  and  the  fact,  if  shown,  that  ei- 
ther or  both  of  the  parties  had  been  previously  married,   and,   of 

68  Cartwright  v.  McGown,  121  111.  388,  12  N.  E.  737,  2  Am.  St.  Rep.  105; 
Caujolle  V.  Ferrie,  26  Barb.  (N.  Y.)  177;  Fleming  v.  People,  27  N.  Y.  329; 
Strode  v.  Magowan's  Heirs,  2  Bush  (Ky.)  627;  People  v.  Calder,  30  Mich. 
85 ;  State  v.  Kean,  10  N.  H.  347,  34  Am.  Dee.  162 ;  Adger  v.  Ackerman,  115- 
Fed.  124,  52  C.  C.  A.  568;  Murchison  v.  Green,  128  Ga.  339,  57  S.  E.  709,  11 
L.  R.  A.  (N.  S.)  702;  Barber  v.  People,  203  111.  543,  68  N.  E.  93;  Senge  v. 
Senge,  106  111.  App.  140;  Sparks  v.  Ross  (N.  J.  Ch.)  65  A.  977;  Potter  v.  Pot- 
ter, 45  Wash.  401,  88  Pac.  025. 

60  Potter  V.  Clapp,  203  111.  592,  68  N.  E.  81,  90  Am.  St.  Rep.  322;  In  re 
Thewlis'  Estate,  217  Pa.  307,  66  Atl.  519;  Murchison  v.  Green,  128  Ga.  339, 
57  S.  E.  709,  11  L.  R.  A.  (N.  S.)  702;  Smith  v.  Fuller  (Iowa)  108  N.  W.  765. 
But  that  a  couple  whose  marriage  is  established  were  divorced  cannot  be 
presumed  in  favor  of  the  legality  of  the  subsequent  marriage  of  either 
of  them  to  another;  the  records  of  all  the  counties  in  which  they  resided 
showing  no  divorce.  Smith  v.  Fuller  (Iowa)  115  N.  W.  912,  16  L.  R.  A.  (N. 
S.)  98. 


§    28)  PRESUMPTION    AND   BURDEN    OF   PROOF.  45 

course,  at  a  former  time  having  a  wife  or  husband  Hving,  does  not 
destroy  the  prima  facie  legality  of  the  last  marriage.  The  natural 
inference  in  such  cases  is  that  the  former  marriage  has  been  le- 
gally dissolved,  and  the  burden  of  showing  that  it  has  not  been, 
rests  upon  the  party  seeking  to  impeach  the  last  marriage.  The 
law  does  not  impose  upon  every  person  contracting  a  second  mar- 
riage the  necessity  of  preserving  the  evidence  that  the  former  mar- 
riage has  been  dissolved,  either  by  death  of  their  former  consort  or 
by  decree  of  court,  in  order  to  protect  themselves  against  a  bill  for 
divorce  or  a  prosecution  for  bigamy."  "* 

60  Harris  v.  Harris,  8  III.  App.  57.  Tliat  a  divorce  will  be  presumed,  see 
Schmisseur  v.  Beatrie,  147  111.  210,  35  N.  E.  525;  Harvey  v.  Carroll,  5  Tex. 
Civ.  App.  324,  23  S.  W.  713;  Squire  v.  State,  46  Ind.  459;  Boulden  v.  Mo 
Intlre,  119  Ind.  574,  21  N.  E.  445,  12  Am.  St.  Rep.  453 ;  Blanchard  v.  Lambert, 
43  Iowa,  228,  22  Am.  Rep.  245;  Klein  v.  Landman,  29  Mo.  259;  Hull  v. 
Rawls,  27  Miss.  471;  McCarty  v,  McCarty,  2  Strob.  (S.  C.)  6,  47  Am.  Dee. 
585 ;  Carroll  v.  Carroll,  20  Tex.  731 ;  In  re  Edwards'  Estate,  58  Iowa,  431, 
10  N.  W.  793;  Wenning  v.  Teeple,  144  Ind.  189,  41  N.  E.  600.  That  death  of 
a  former  husband  or  wife  will  be  presumed,  though  absent  for  less  than  the 
time  necessary  to  raise  a  legal  presumption  of  death,  see  Dixon  v.  People, 
18  Mich.  84;  Com.  v.  Boyer,  7  Allen  (Mass.)  306;  Rex  v.  Inhabitants  of 
Twyning,  2  Barn.  &  Aid.  386;  Greensboro  v.  Underbill,  12  Vt.  604;  Harris 
V.  Harris,  8  111.  App.  57;  Yates  v.  Houston,  3  Tex.  449;  Senser  v.  Bower,  1 
Pen.  &  W.  (Pa.)  450;  Johnson  v.  Johnson,  114  111.  611,  3  N.  E.  232,  55  Am. 
Rep.  883.  In  the  case  of  Greensboro  v.  Underbill,  supra,  the  court  say:  "Is 
the  intermarriage  of  Burdick  with  the  pauper  in  1836  rendered  illegal  and 
void  from  the  fact  of  her  intermarriage  with  Hyland  m  1834,  who,  after  a 
short  cohabitation  with  her,  absconded,  and  has  not  since  been  heard  of? 
To  render  the  second  marriage  illegal  and  void,  we  must  presume  the  con- 
tinuance of  the  life  of  Hyland  down  to  the  time  of  the  second  marriage; 
•and  though,  as  a  general  principle,  we  are  to  presume  the  continuance  of  life 
for  the  space  of  seven  years,  still,  when  this  presumption  is  brought  into 
conflict  with  other  presumptions  in  law,  it  may  be  made  to  yield  to  them. 
We  are  in  all  cases  to  presume  against  the  commission  of  crime,  and  in  favor 
of  innocence;  and  the  result  will  be,  if  we  suffer  this  presumption  to  yield 
to  the  other,  we,  by  presumption  alone,  pronounce  the  second  marriage  illegal 
and  void,  and  the  parties  guilty  of  a  heinous  crime.  *  *  *  In  the  case  of 
Rex.  V.  Inhabitants  of  Twyning,  2  Barn.  &  Aid.  386,  the  woman  married 
again  within  the  spa,ce  of  12  months  after  her  husband  had  left  the  country, 
and  yet  the  presumption  of  innocence  was  held  to  preponderate  over  the 
usual  presumption  of  the  continuance  of  life ;  and  this,  too,  in  a  case  involv- 
ing a  question  of  settlement."  Evidence  that  the  records  of  the  court  of  the 
county  or  counties  in  which  the  parties  always  lived  show  no  divorce  is  suffi- 
cient to  rebut  the  presumption  of  a  divorce.  Schmisseur  v.  Beatrie,  supra; 
Barnes  v.  Barnes,  90  Iowa,  282,  57  N.  W.  851. 


46  MARRIAGE.  (Ch.  1 

The  question  of  presumption,  in  cases  where  it  is  claimed  that 
an  informal  marriage  was  consummated,  has  been  considered  in 
treating  of  informal  marriages.'^ 


CONSTRUCTION   OF   STATUTES. 

29.  Statutes  governing  marriages  are  to  be  construed  in  the  light 
of  the  law  as  it  existed  prior  to  their  enactment;  and,  un- 
less the  intention  of  the  Legislature  to  that  effect  is  clear, 
they  Tsrill  not  be  held  to  avoid  marriages  that  ■were  valid  at 
common  law,  or  to  otherw^ise  change  the  common  laur. 

It  has  been  seen,  in  treating  of  formalities  in  the  celebration  of 
a  marriage,  that  at  common  law  none  were  required,  and  that  where 
the  legislature  prescribes  formalities,  as  where  it  requires  a  license, 
or  consent  of  parents,  or  designates  persons  who  shall  be  compe- 
tent to  perform  the  marriage  ceremony,  the  statute  is  not  to  be 
construed  as  invalidating  common-law,  informal  marriages,  unless 
it  expressly  declares  that  failure  to  observe  the  formalities  prescribed 
shall  render  the  marriage  void.®^  An  intent  to  change  the  common 
law  must  be  clear.  "Though  in  most,  if  not  all,  the  United  States, 
there  are  statutes  regulating  the  celebration  of  marriage  rites,  and  in- 
flicting penalties  on  all  who  disobey  the  regulations,  yet  it  is  generally 
considered  that,  in  the  absence  of  any  positive  statute  declaring  that 
all  marriages  not  celebrated  in  the  prescribed  manner  shall  be  void, 
or  that  none  but  certain  magistrates  or  ministers  shall  solemnize  a 
marriage,  any  marriage  regularly  made  according  to  the  common  law, 
without  observing  the  statute  regulations,  would  still  be  a  valid  mar- 
riage." ®^  "A  statute  may  declare  that  no  marriages  shall  be  valid 
unless  they  are  solemnized  in  a  prescribed  manner ;  but  such  an  en- 
actment is  a  very  different  thing  from  a  law  requiring  all  marriages 
to  be  entered  into  in  the  presence  of  a  magistrate  or  a  clergyman,  or 
that  it  be  preceded  by  a  license  or  publication  of  banns,  or  be  attest- 
ed to  by  witnesses.  Such  formal  provisions  may  be  construed  as  mere- 
ly directory,  instead  of  being  treated  as  destructive  of  a  common-law 

•  1  Ante,  pp.  35,  37. 

«2  Ante,  p.  32,  and  cases  there  collated.  But  see  In  re  McLanshlin's  Es- 
tate, 4  Wagh.  St.  570,  30  Pae.  C51,  IG  L.  R.  A.  699. 

03  2  Greenl.  Ev.  §  4G0,  quoted  with  approval  in  Meister  v.  Moore,  06  U.  S. 
79,  24  L.  Ed.  82S. 


§    29)  CONSTRUCTION    OF   STATUTES.  47 

right  to  form  the  marriage  relation  by  words  of  present  assent.  And 
such,  we  think,  has  been  the  rule  generally  adopted  in  construing  stat- 
utes regulating  marriage.  Whatever  directions  they  may  give  respect- 
ing its  formation  or  solemnization,  courts  have  usually  held  a  marriage 
good  at  common  law  to  be  good  notwithstanding  the  statutes,  unless 
they  contain  express  words  of  nullity."  '* 

On  the  same  principle  of  construction,  it  has  been  held  that  a  statute 
which  declares  a  marriage  void  (as  for  canonical  disabilities),  but  does 
not  express  any  intention  on  the  part  of  the  legislature  to  change  the 
pre-existing  law,  will  not  be  construed  as  rendering  absolutely  void 
a  marriage  which  was  formerly  only  voidable  by  a  decree  of  nullity 
in  the  lifetime  of  the  parties.  It  was  said,  in  a  case  holding  this  prin- 
ciple: "The  disabilities  enumerated  are  all  canonical  disabilities,  and 
not  those  known  to  the  law  as  'civil  disabilities.'  Canonical  disabilities 
were  such  as  render  the  marriage  voidable,  and  not  void.  They  re- 
quire the  judgment  of  an  ecclesiastical  court,  during  the  lives  of  the 
parties,  to  make  them  effective  as  causes  of  a  divorce.  On  the  other 
hand,  civil  disabilities,  such  as  arose  pro  defectu  consensus,  for  want 
of  a  capacity  to  contract,  or  mental  infirmity,  ipso  facto  avoided  mar- 
riage without  the  action  of  the  courts.  When  the  legislature  declared 
by  statute  that  persons  laboring  under  canonical  disabilities  should 
not  marry  under  certain  penalties,  but  such  marriages  should  be  void, 
and  gave  jurisdiction  to  the  general  court  to  hear  and  determine  up- 
on such  marriages,  it  is  to  be  supposed  they  designed  to  put  persons 
laboring  under  such  disabilities  in  the  same  position  they  were  at  com- 
mon law — viz.,  they  should  be  void,  when  established  by  the  judgment 
of  a  court,  in  the  life  of  the  parties  to  the  marriage — not  to  confound 
canonical  and  civil  disabilities,  and  destroy  the  distinction  between 
them."  «=* 

So,  also,  where  a  statute  declared  that  persons  under  the  age  of  17 
should  not  be  capable  of  marrying,  and  that  the  marriage  of  persons 
incapable  of  marrying  should  be  void,  it  was  held  that  a  marriage  by 
a  boy  16  years  of  age  could  be  confirmed  and  ratified  by  him  on  reach- 


e*  Meister  v.  Moore,  96  U.  S.  76,  24  L.  Ed.  826.  And  see  cases  cited  ante, 
p.  32. 

65  Harrison  v.  State,  22  Md.  468,  85  Am.  Dec.  658.  And  see  Bonham  v. 
Badgley,  2  Oilman  (III.)  622;  Parker's  Appeal,  44  Pa.  309;  Com.  v.  Perry- 
man,  2  Leigh  (Va.)  717;  Bowers  v.  Bowers,  10  Rich.  Eq.  (S.  C.)  551,  73  Am. 
Dec.  99. 


48  MARRIAGE.  (Ch.  1 

ing  his  seventeenth  year,'®  The  court  construed  the  statute  as  not 
changing  the  common-law  rule  as  to  the  effect  of  marriages  by  persons 
under  the  age  of  consent. 

CONFLICT  OF  liAWS. 

30.   As  a  rnle,  the  validity  of  a  marriage  is  determined  by  tlie  laxr 
of  the  place  \irlicre  it  was  entered  into. 

It  is  well  settled  that,  as  a  general  rule,  the  validity  of  a  marriage 
is  to  be  determined  by  the  law  of  the  place  where  it  is  entered  into; 
so  that,  as  it  is  often  expressed,  a  marriage  that  is  valid  where  made 
is  valid  everywhere,  and  a  marriage  that  is  void  where  made  is  void 
everywhere.'^  To  this  rule  there  are,  however,  some  exceptions. 
For  example,  a  marriage  entered  into  in  one  state  or  country  will  not 
be  recognized  as  valid  by  the  courts  of  another  state  or  country  if  it 
is  opposed  to  morality  or  rehgion'or  the  law  of  nature  as  generally 
recognized  in  Christian  countries,"^  such  as  a  polygamous  or  inces- 

6  6  Smith  V.  Smith,  84  Ga.  440,  11  S.  E.  496,  8  L.  R.  A.  362.  And  see  Her- 
vey  V.  Moseley,  7  Gray  (Mass.)  479,  66  Am.  Dec.  515;  Inhabitants  of  Hiram 
V.  Pierce,  45  Me.  367,  71  Am.  Dec.  555 ;  Holtz  v.  DiclJ,  42  Ohio  St  23,  51  Am. 
Rep.  791,  and  cases  above  cited. 

67  Roach  V.  Garvan,  1  Ves.  Sr.  159;  Warrender  v.  Warrender,  2  Clarlc  & 
F.  488;  Harding  v.  Alden,  9  Greenl.  (Me.)  140,  23  Am.  Dec.  549;  In  re  Lum 
Lin  Ying  (D.  C.)  59  Fed.  682;  Stevenson  v.  Gray,  17  B.  Hon.  (Ky.)  193;  Du- 
maresly  v.  Flshly,  3  A.  K.  Marsh.  (Ky.)  368;  True  v.  Ranney,  21  N.  H.  52, 
53  Am.  Dec.  164;  Brinkley  v.  Attorney  General,  15  Prob.  Div.  76;  Hutcljius 
V.  Kimraell,  31  Mich.  126,  18  Am.  Rep.  164 ;  Van  Voorhis  v.  Brintnall,  86  N. 
Y.  18,  40  Am.  Rep.  505;  Moore  v.  Hegeman,  92  N.  Y.  .521,  44  Am.  Rep.  408; 
Thorp  V.  Thorp,  90  N.  Y.  602,  43  Am.  Rep.  189 ;  Fornshill  v.  Murray,  1  Bland 
(Md.)  479,  18  Am.  Dec.  344;  Herbert  v.  Herbert,  3  Phillim.  Ecc.  58;  Roche 
V.  Washington,  19  Ind.  53,  81  Am.  Dec.  376;  Sutton  v.  Warren,  10  Mete. 
(Mass.)  451;  Com.  v.  Graham,  157  Mass.  75,  31  N.  E.  706,  16  L.  R.  A.  578. 
34  Am.  St.  Rep.  255 ;  Inhabitants  of  Hiram  v.  Pierce,  45  Me.  367,  71  Am.  Dec. 
555;  Johnson  v.  Johnson's  Adm'r,  30  Mo.  72,  77  Am.  Dec.  598;  Inhabitants 
of  Medway  v.  Inhabitants  of  Needham,  16  Mass.  157,  8  Am.  Dec.  131 ;  Jack- 
son V.  Jackson,  80  Md.  176,  30  Atl.  752 ;  Hills  v.  State.  61  Neb.  589,  85  N.  W. 
836,  57  L.  R.  A.  155 ;  Darling  v.  Dent,  82  Ark.  76,  100  S.  W.  747;  McIIenry  v. 
Brackin,  93  Minn.  510,  101  N.  W.  960;  Travers  v.  Reinhardt,  25  App.  D.  C. 
567. 

68  Commonwealth  v.  Lane,  113  Mass.  458,  18  Am.  Rep.  509;  Sturgis  v. 
Sturgis  (Or.)  93  Pac.  696,  15  L.  R.  A.  (N,  S.)  1034 ;  State  v.  Fenn,  47  Wash. 
561,  92  Pac.  417;  True  v.  Ranney,  21  N.  H.  52,  53  Am.  Dec.  164  (where  the 
marriage  of  an  imbecile  was  involved). 


§   30)  CONFLICT  OF  LAWS.  49 

tuous  marriage ;  ^®  or,  secondly,  if  it  is  a  marriage  which  the  local  law- 
making power  has  declared  invalid  as  contrary  to  the  settled  policy  of 
the  state.^° 

While  there  seem  to  be  no  differences  of  opinion  as  to  cases  arising 
under  the  first  exception,  there  is  an  apparent  conflict  between  the 
courts  where  the  decision  has  turned  on  questions  arising  under  the 
second  exception,  especially  when  the  parties  have  gone  out  of  the 
state  in  which  they  live  for  the  purpose  of  evading  its  laws.  The 
courts  of  some  states  have  held  that  in  such  instances  the  marriage  will 
not  be  declared  invalid  on  the  return  of  the  parties  into  the  state,  if 
it  was  valid  in  the  state  or  country  where  it  took  place. ^^  On  the  other 
hand,  in  other  jurisdictions  the  contrary  rule  has  been  announced.'^ ^ 

It  is  to  be  observed,"  however,  that  the  conflict  is  more  apparent  than 
real,  and  that  in  nearly  every  case  the  decision  turns  on  the  question 
whether  the  particular  provision  of  the  law  which  it  was  sought  to 


89  Conway  v.  Beazley,  3  Hagg.  Ecc.  639;  Inhabitants  of  Medway  v.  Inhab- 
itants of  Needham,  16  Mass.  157,  8  Am.  Dec.  131 ;  Stevenson  v.  Gray,  17  B. 
Mon.  (Ky.)  193;  Roche  v.  Washington,  19  Ind.  53,  81  Am.  Dec.  376;  Sturgis 
V.  Sturgis  (Or.)  93  Pac.  696,  15  L.  R.  A.  (N.  S.)  1034 ;  State  v.  Fenn,  47  Wash.. 
561,  92  Pac.  417.  The  marriage  must,  however,  be  incestuous  by  the  common 
consent  of  Christendom ;  i.  e.,  marriages  in  the  direct  line  of  consanguinity 
and  in  the  collateral  line  between  brothers  and  sisters.  Sutton  v.  Warren, 
10  Mete.  (Mass.)  451;    Stevenson  v.  Gray,  17  B.  Mon.  (Ky.)  193. 

7  0  Pennegar  v.  State,  87  Tenn.  244,  10  S.  W.  305,  2  L.  R.  A.  703,  10  Am. 
St.  Rep.  648;  Sturgis  v.  Sturgis  (Or.)  93  Pac.  696,  15  L.  R.  A.  (N.  S.)  1034; 
Brook  V.  Brook,  9  H.  L.  Cas.  193;  Succession  of  Gabisso,  119  La.  704,  44 
South.  438,  11  L.  R.  A.  (N.  S.)  1082,  121  Am.  St.  Rep.  529;  Newman  v.  Kim- 
brough  (Tenn.  Ch.  App.)  59  S.  W.  1061,  52  L.  R.  A.  668;  State  v.  Fenn,  47 
Wash.  561,  92  Pac.  417. 

71  Com.  V.  Graham,  157  Mass.  73,  31  N.  E.  706,  16  L.  R.  A.  578,  34  Am. 
St.  Rep.  255 ;  Thorp  v.  Thorp,  90  N.  Y.  602,  43  Am.  Rep.  189 ;  Inhabitants  of 
West  Cambridge  v.  Inhabitants  of  Lexington,  1  Pick.  (Mass.)  506,  11  Am.  Dec. 
231;  Inhabitants  of  Medway  v.  Inhabitants  of  Needham,  16  Mass.  157,  8 
Am.  Dec.  131 ;  Courtright  v.  Courtright,  26  Wkly.  Law  Bui.  (Ohio)  309 ;  Petit 
V.  Petit,  45  Misc.  Rep.  155,  91  N.  Y.  Supp.  979;  Ex  parte  Chace,  26  R.  I. 
351,  58  Atl.  978,  69  L.  R.  A.  493. 

72Dupre  V.  Boulard's  Ex'r,  10  La.  Ann.  411;  Babin  v.  Le  Blanc,  12  La. 
Ann.  367 ;  Maillefer  v.  Saillot,  4  La.  Ann.  375;  Saul  v.  His  Creditors,  5  Mart. 
(La.;  N.  S.)  569,  16  Am.  Dec.  212;  Succession  of  Caballero  v.  Executor,  24 
La.  Ann.  573;  INIcLennan  v.  McLennan,  31  Or.  480,  50  Pac.  802,  38  L.  R.  A. 
863,  65  Am.  St.  Rep.  835;  In  re  Stull's  Estate,  183  Pa.  625,  39  Atl.  16,  39  L. 
R.  A.  539,  63  Am.  St.  Rep.  776;  Durocher  v.  Degre,  Rap.  Jud.  Que.  20  C.  S. 
456. 

TIFF.P.&  D.Rel.(2d  Ed.) — 1 


50  MARRIAGE.  (Ch.  1 

evade  was  or  was  not  an  expression  of  the  distinctive  public  policy  of 
the  state.  This  becomes  manifest  if  a  comparison  is  made  of  the  de- 
cisions, apparently  conflicting,  from  the  same  jurisdiction/*  or  of 
decisions  from  different  jurisdictions  where  local  conditions  have  giv- 
en rise  to  distinctive  public  policies/* 

It  is  generally  held  that,  if  the  statutory  prohibition  relates  only  to 
matters  of  form  and  ceremony,  the  general  rule  applies,"  and  the 
marriage  will  be  held  valid,  even  though  the  parties  were  married  in 
another  state  in  order  to  evade  the  law  of  their  own  state/' 

A  marriage  invalid  in  the  country  or  state  where  it  was  made  may 
be  valid  as  a  common-law  marriage  in  another  state.  Thus  in  a  New 
York  case  it  was  held  that  a  marriage  between  a  man  and  a  woman 
whose  former  husband  had  not  been  heard  from  or  known  to  be  liv- 
ing for  more  than  five  years  prior  to  such  marriage,  solemnized  in 
Canada,  and  void  under  the  laws  of  that  country,  because  of  the  pos- 
sible existence  of  such  former  husband,  could  be  treated  in  New  York, 
where  both  the  parties  were  then  domiciled,  as  a  marriage  per  verba 


7  3  Compare  McLennan  v.  McLennan,  31  Or.  480,  50  Pac.  802,  38  L.  R.  A. 
863,  65  Am.  St.  Rep.  835,  and  Sturgis  v.  Sturgis  (Or.)  93  Pac.  69G,  15  L.  R. 
A.  (N.  S.)  1034.  Compare,  also,  Tyler  v.  Tyler,  170  Mass.  150,  48  N.  E.  1075, 
and  Com.  v.  Graham,  157  Mass.  73,  31  N.  E.  706,  16  L.  R.  A.  578,  34  Am.  St. 
Rop.  255.  The  good  faith  of  the  parties  was  regarded  as  an  element  in 
Whippen  v.  Whippen,  171  Mass.  560,  51  N.  E.  174. 

7  4  Compare  Inhabitants  of  Medway  v.  Inhabitants  of  Needham,  16  Mass. 
157,  8  Am.  Dec.  131,  in  which  the  marriage  of  a  white  person  with  a  negro 
was  involved,  with  Kinney  v.  Commonwealth,  30  Grat.  (Va.)  858,  32  Am.  Rep. 
090,  and  State  v.  Kennedy,  76  N.  C.  251,  22  Am.  Rep.  683.  In  this  connection 
see,  also,  Minor,  Confl.  of  Laws,  pp.  151-153. 

TsDalrymple  v.  Dalrymple,  2  Hagg.  Consist.  54;  In  re  Lum  Lin  Ying  (D. 
C.)  59  Fed.  682;  Inhabitants  of  Hiram  v.  Pierce,  45  Me.  367,  71  Am.  Dec.  555; 
Jackson  v.  Jackson,  80  Md.  176,  30  Atl.  752;  Id.,  82  Md.  17,  33  Atl.  317,  34 
L.  R.  A.  773 ;  Com.  v.  Graham,  157  Mass,  73,  31  N.  E.  706,  16  L.  R.  A.  578,  34 
Am.  St.  Rep.  255. 

7  6  Pennegar  v.  State,  87  Tenn.  244,  10  S.  W.  305,  2  L.  R.  A.  703,  10  Am.  St. 
Rep.  &18;  Sturgis  v.  Stm-gis  (Or.)  93  Pac.  696,  15  L.  R.  A.  (N.  S.)  1034;  In 
re  Chace,  26  R.  I.  351,  58  Atl.  978,  69  L.  R.  A.  493.  But  see  Norman  v.  Nor- 
man, 121  Cal.  620,  54  Pac.  143,  42  L.  R.  A.  343,  66  Am.  St  Rep.  74,  holding 
that  where  parties  go  on  the  high  seas,  where  no  law  exists,  to  be  married, 
so  as  to  evade  the  laws  of  the  state  wherein  they  are  domiciled,  and  immedi- 
ately after  the  marriage  return  and  continue  to  reside  in  such  state,  the 
laws  of  their  domicile  apply  to  the  marriage. 


§   30)  CONFLICT   OF   LAWS.  51 

de  prsesenti,  and  valid  when  followed  by  cohabitation  as  husband  and 
wife.'^^ 

There  are  some  laws  of  a  state  or  country  that  will  not  necessari- 
ly be  taken  into  consideration  in  another.  If  the  law  of  one  state  pro- 
hibits a  marriage  between  certain  persons,  as  a  penal  matter,  the  stat- 
ute is  not  necessarily  recognized  in  another  state,  and  if  residents  of 
the  latter  go  into  the  former  and  marry  contrary  to  that  law,  intend- 
ing to  return,  and  in  fact  returning,  to  the  state  of  their  residence, 
where  the  marriage  would  have  been  valid,  the  marriage  will  be  there 
upheld.  Thus  it  was  held  by  the  Louisiana  court  that  the  prohibition 
of  the  New  York  statute  to  the  effect  that  no  second  or  other  subse- 
quent marriage  should  be  contracted  by  any  person  during  the  life- 
time of  any  former  husband  or  wife  of  such  person,  in  case  the  former 
marriage  was  dissolved  on  the  ground  of  adultery,  had  no  extraterri- 
torial effect,  being  a  penal  statute,  and  that  it  could  not  be  given  the 
effect  of  annulling  a  marriage  between  persons  at  the  time  residing 
abroad,  and  intending  to  continue  to  reside  abroad,  notwithstanding 
it  was  solemnized  in  New  York.''^  So,  also,  in  a  Maine  case  it  was 
held  that  where  a  husband  obtained  a  divorce  from  his  wife  for  her 
fault,  by  the  decree  of  a  court  of  another  state,  which  prohibited  the 
wife  from  remarrying,  the  wife  still  residing  in  Maine,  the  prohibition 
to  remarry  was  in  the  nature  of  a  penalty,  and  had  no  force  as  a  disa- 
bility to  remarry  in  another  state,  and  therefore  such  disability  did 
not  attach  to  the  person  of  the  wife  in  Maine.''® 

Although  an  Indian  tribe,  recognized  as  such  may  be  located  with- 
in state  lines,  yet  so  long  as  their  tribal  customs  are  adhered  to,  and 
the  federal  government  manages  their  aft'airs  by  agents,  they  are  not 
to  be  regarded  as  subject  to  state  laws,  so  far  as  marriage  is  concern- 
ed ;  and  therefore  marriages  between  members  of  Indian  tribes  in 
tribal  relations,  valid  by  the  customs  and  laws  of  the  tribe,  and  con- 


7  7  Wilcox  V.  Wilcox,  46  Hun  (N.  Y.)  32.    And  see  cases  in  note  G7,  supra. 

7  8  Succession  of  Hernandez,  46  La.  Ann.  962.  15  South.  461,  24  L.  R.  A. 
831.  See,  also,  Frame  v.  Thormann,  101  Wis.  653,  79  N.  W.  39;  Snuffer  v. 
Karr,  197  Mo.  182,  94  S.  W.  983;  State  v.  Shattuck,  69  Vt.  403,  38  Atl.  81, 
40  L.  R.  A.  428,  60  Am.  St.  Rep.  936. 

7  9  Inhabitants  of  Phillips  v.  Inhabitants  of  Madrid,  83  Me.  205,  22  Atl. 
114,  12  L.  R.  A.  862.  23  Am.  St.  Rep.  770.  It  was  also  held  in  this  case  that 
the  prohibition  to  marry  contained  in  the  statiites  of  one  state  did  not  apply 
to  di\orces  granted  in  another  state. 


52  MARRIAGE.  (Ch.  1 

tracted  at  a  time  when  there  was  no  law  of  the  United  States  on  the 
subject  of  Indian  marriages,  must  be  recognized  as  vahd  by  the  state 
courts  though  not  in  compliance  with  the  laws  of  the  state. ^"^ 

8  0  Boyer  v.  Dively,  58  Mo.  529;  Kobogum  v.  Jackson  Iron  Co.,  76  Mich. 
498,  43  N.  W.  602,  and  cases  cited;  Earl  v.  Godley,  42  Minn.  361,  44  N.  AV. 
254,  7  L.  R.  A.  125,  18  Am.  St.  Rep,  517;  Johnson  v.  Johnson's  Adm'r,  30  Mo. 
72,  77  Am.  Dec.  598;  Moore  v.  Nah-con-be,  72  Kan.  169,  83  Pac.  400;  First 
Nat.  Banl£  v.  Sharpe,  12  Tex.  Civ.  App.  223,  33  S.  W.  676;  Ortley  v.  Ross 
(Neb.)  110  N.  W.  982.  But  compare  Roche  v.  Washington,  19  Ind.  53,  81  Am. 
Dec.  376;  State  v.  Ta-cha-na-tah,  64  N.  C.  614.  A  marriage  contracted  ac- 
cording to  the  customs  of  an  Indian  tribe  need  not  be  contracted  in  the  ter- 
ritory of  the  tribe,  to  be  valid.  La  Riviere  v.  La  Riviere,  97  Mo.  80,  10  S.  W. 
840.  But  see  Roche  v.  Washington,  19  Ind.  53,  81  Am.  Dec.  376,  and  Banks 
V.  Galbraith,  149  Mo.  529,  51  S.  W.  105. 


§   31)  RIGHTS  AND   DUTIES  INCIDENT  TO  COVERTURE,  53 

CHAPTER  II. 
RIGHTS  AND  DUTIES  INCIDENT  TO  COVERTURE  IN  GENERAL. 

31.  Right  to  Cohabitation  and  Intercourse. 

82-.33.  Restraint  and  Correction  of  Wife. 

34.  Right  to  Determine  Family  Domicile. 

85-36.  Crimes  of  Married  Women. 

37.  Grimes  as  between  Husband  and  Wife. 

38-41.  Torts  of  Married  Women. 

42-43.  Torts  as  Between  Husband  and  Wife. 

44.  Torts  Against  Married  Women. 

45-^6.  Actions  for  Enticing,  Harboring,  or  Alienation  of  Affection. 

47.  Action  for  Criminal  Conversation. 

"By  marriage,"  says  Blackstone,  "the  husband  and  wife  are  one 
person  in  law.  The  very  being  or  legal  existence  of  the  woman  is  sus- 
pended during  the  marriage,  or  at  least  is  incorporated  and  consolidat- 
ed into  that  of  the  husband,  under  whose  wing,  protection,  and  cover 
she  performs  everything;  and  is  therefore  called,  in  our  law  French, 
a  'feme  covert' — 'foemina  viro  co-operta' ;  is  said  to  be  'covert  baron,' 
or  under  the  protection  and  influence  of  her  husband,  her  baron  or 
lord ;  and  her  condition  during  her  marriage  is  called  her  'coverture.' 
Upon  this  principle  of  a  union  of  person  in  husband  and  wife  depend 
almost  all  the  legal  rights,  duties,  and  disabilities  that  either  of  them 
acquire  by  the  marriage."  * 

RIGHT  TO   COHABITATION   AND  INTERCOURSE. 

31.  Marriage  mutually  entitles  the  husband  and  ivif  e- to  cohabitation 
and  intercourse,  but  in  this  country  there  is  no  ^^ay  in  xrhich 
this  right  can  be  judicially  enforced. 

Marriage  entitles  the  husband  and  wife  to  each  other's  society ;  that 
is,  they  are  mutually  entitled  to  cohabitation.  And,  in  addition  to  this, 
they  are  mutually  entitled  to  sexual  intercourse.''     The  law,  in  this 

1  1  Bl.  Comm.  442. 

2  In  law  "cohabitation"  Is  properly  used  to  designate  the  living  together 
of  a  man  and  woman  as  husband  and  wife,  though  the  term  is  often  er- 
roneously used  in  the  sense  of  sexual  intercourse.     Properly  speaking,  "co- 


54  RIGHTS   AND   DUTIES   INCIDENT  TO   COVERTURE,  (Ch.  2 

country  at  least,  cannot,  as  could  be  done  in  England,  enforce  the  right 
to  cohabitation  and  intercourse  in  a  suit  for  restitution  of  conjugal 
rights.'  But  the  right  is  essential  to  the  marriage  state,  and  is  the 
basis  of  many  of  the  personal  rights  of  the  spouses.  It  is  recognized 
by  the  law  in  many  ways.  Thus  a  promise  by  a  husband  to  his  wife 
to  pay  her  money  if  she  will  cohabit  with  him,  or  permit  him  to  have 
sexual  intercourse,  would  be  void  for  want  of  consideration,  as  the 
only  consideration  therefor  is  the  doing  by  the  wife  of  something  which 
she  is  already  bound  in  law  to  do.*  Other  illustrations  of  the  recog- 
nition of  the  right  to  cohabitation  and  intercourse  are  in  the  fact  that 
a  marriage  may  be  annulled  on  the  ground  of  impotence  existing  at 
the  time  of  the  marriage,  that  desertion  is  very  generally  made  a 
ground  for  divorce,  and  that  it  is  not  rape  for  a  husband  to  have  in- 
tercourse with  his  wife  by  force,  and  against  her  will.  While  a  hus- 
band is  thus  entitled  to  sexual  intercourse  with  his  wife,  he  cannot  com- 
pel her  to  submit  when  not  in  a  condition  to  do  so,  as  where  she  is 
ill.  Nor  can  he  compel  her  to  submit  to  excessive  intercourse,  endan- 
gering her  health,  or  to  intercourse  with  him  while  he  is  diseased.  This 
would  be  cruelty,  and  in  some  states  a  ground  for  divorce."* 

A  wife  may  be  justified,  under  certain  circumstances,  in  leaving  her 
husband,  and  living  apart  from  him.  Extreme  cruelty  or  adultery 
on  his  part  would  justify  her  in  taking  such  a  course.  Any  cause  that 
would  entitle  her  to  sue  for  a  divorce  would  undoubtedly  justify  her. 
And,  though  there  is  some  doubt  on  the  subject,  it  is  held  in  some  ju- 
risdictions that  she  may  be  so  justified  by  causes  which  are  not  suffi- 
cient to  entitle  her  to  a  divorce.^     In  like  manner,  a  husband  may  be 


habitation"  does  not  necessarily  imply  sexual  intercourse.  1  Bish.  Mar.,  Div. 
&  Sep.  §  1GG9,  and  note;  Yardley's  Estate,  75  Pa.  207;  Pollock  v.  Pollock, 
71  N.  Y.  137,  141. 

3  Schouler,  Husb.  &  W.  §§  4S2,  483;    1  Bish.  Mar.,  Div.  &  Sep.  §  69. 

*  Roberts  v.  Frisby,  38  Tex.  219;  Reithmaier  v.  Beckwith,  35  Mich.  110. 
There  may  be  circumstances  under  which  a  promise  by  a  wife  to  continue 
to  cohabit  with  her  husband  would  constitute  a  consideration  for  his  prom- 
ise given  in  return.  This  would  be  so  in  any  case  where  the  conduct  of  the 
husband  had  been  such  as  to  entitle  the  wife  to  leave  him.  In  Phillips  v. 
Meyers,  82  111.  67,  25  Am.  Rep.  295,  for  instance,  a  note  executed  by  a  hus- 
band for  the  benefit  of  his  wife,  in  consideration  of  her  discontinuing  a  suit 
for  divorce  on  the  ground  of  his  drunkenness  and  abuse,  was  upheld. 

6  See  post,  p.  192. 

fi  Watts  V.  Watts,  160  Mass.  464,  36  N.  E.  479,  23  L.  R.  A.  1S7,  39  Am. 
St   Rep.  509. 


§§   32-33)  RESTRAINT    AND   CORRECTION    OF   WIFE.  55 

justified  in  leaving  his  wife.''  The  question  is  one  of  great  import- 
ance; for,  if  either  husband  or  wife  deserts  the  other  without  justi- 
fication, the  statutes  very  generally  entitle  the  deserted  spouse  to  a  di- 
vorce.* In  addition  to  this,  there  are  statutes  in  some  jurisdictions 
rendering  a  husband  liable  to  a  criminal  prosecution  if  he  abandons 
his  wife  without  just  cause.'  A  deserted  wife  may  also  sue  for  main- 
tenance,^°  and  she  has  the  power  to  bind  her  husband  for  necessaries 
to  a  much  greater  extent  than  when  living  with  him,  and  being  sup- 
ported by  him.^^ 


RESTRAINT   AND   CORRECTION   OF  "WIFE. 

32.  A  husband  lias  no  right  to  restrain  his  wife  of  her  liberty,  ex- 

cept •where  restraint  is  necessary,  either: 
EXCEPTIONS— (a)    To   prevent  her   from   committing   a   crime. 

(b)  To    prevent  her   from    committing    adultery. 

(c)  Perhaps,   to  prevent  her   from   committing  a  tort  for  -which  h«.. 

as  her  husband,  would  be  liable. 

(d)  Perhaps,  to  prevent  her  interference  -with  his  parental  author!'- 

ty  ovei*  his   children. 

33.  A  husband  has  no  right  to  chastise  his  w^ife  in  any  case. 

Restraint. 

The  text-books  generally  state  that  the  husband  has  the  right  to  re- 
strain his  wife's  person.     Kent  says  that  the  law  has  given  the  hus- 


7  McClurg's  Appeal,  (56  Pa.  366.  s  See  post,  p.  199. 

»  State  V.  Schweitzer,  57  Conn.  532,  IS  Atl.  787,  6  L.  R.  A.  125;  State  v. 
Fiichs,  17  Mo.  App.  458;  State  v.  Broyer,  44  Mo.  App.  393;  State  v.  Witliam, 
70  Wis.  473,  35  N.  W.  934;  Cutliberts  v.  Slate,  72  Neb.  727,  101  N.  W.  1021; 
Virtue  v.  People,  122  111.  App.  223;  Spencer  v.  State,  132  Wis.  509,  112  N. 
W.  462,  122  Am.  St.  Rep.  989. 

10  Stim.  Am.  St.  Law,  §  6351;  Kinsey  v.  Kinsey,  37  Ala.  303;  Simpson 
V.  Simpson,  31  Mo.  24;  McMullen  v.  McMullen,  10  Iowa,  412;  Elliott  v. 
Elliott,  48  N.  J.  Eq.  231,  21  Atl.  381;  Smith  v.  Smith,  35  Ind.  App.  610,  74 
N.  E.  1008;  Rhoades  v.  Rhoades  (Neb.)  Ill  N.  W.  122.  In  Iowa  it  has  been 
hold  that  a  suit  for  separate  maintenance  cannot  be  maintained  except  for 
a  cause  that  would  warrant  a  decree  of  divorce.  Shors  v.  Shors,  133  Iowa, 
22,  110  N.  W.  16.  But  see  Mellanson  v.  Mellanson,  113  111.  App.  81,  holding 
that  a  wife,  in  order  to  obtain  separate  maintenance,  need  not  show  a 
statutory  ground  for  divorce;  but  it  is  sufficient  if  a  pex'sistent,  unjustifiable 
course  of  conduct  on  the  part  of  the  husband  be  shown  which  necessarily 
renders  the  life  of  the  wife  miserable. 

11  See  post,  p.  131. 


56  RIGHTS   AND   DUTIES   INCIDENT   TO   COVERTURE.         •       (Ch.  2 

band  a  reasonable  superiority  and  control  over  her  person,  and  that 
he  may  even  put  gentle  restraint  upon  her  liberty.^*  The  early  cases 
support  this  view,^^  and  the  right  has  been  recognized  in  a  recent  Eng- 
lish case,^*  where  it  was  held  that  the  law  places  the  wife  under  the 
guardianship  of  the  husband,  and  entitles  him,  for  the  sake  of  both, 
to  protect  her  from  the  danger  of  unrestricted  intercourse  with  the 
world,  by  enforcing  cohabitation  and  a  common  residence.  Here,  the 
wife  having  left  her  husband,  he  brought  suit  for  restitution  of  con- 
jugal rights,  and  she  failed  to  answer.  Thereupon  he  decoyed  her  to 
his  house,  and  restrained  her  there  against  her  will.  It  was  held  that 
he  was  justified  in  thus  forcibly  detaining  her.  This  case,  however, 
has  been  recently  overruled  by  the  court  of  appeal  in  a  case  where  the 
husband,  having  obtained  a  decree  for  restitution  of  conjugal  rights, 
caused  his  wife  to  be  seized  in  the  street,  and  confined  in  his  house. ^"^ 
The  Master  of  the  Rolls  said  in  that  case :  "I  do  not  believe  that  an 
English  husband  has,  by  law,  any  such  right  over  his  wife's  person  as 
has  been  suggested,  I  do  not  say  that  there  may  not  be  occasions  on 
which  he  would  have  a  right  of  restraint,  though  not  of  imprisonment. 
For  instance,  if  the  wife  were  about  immediately  to  do  something  which 
would  be  to  the  dishonor  of  her  husband,  as  if  that  he  saw  his  wife  in 
the  act  of  going  to  meet  a  paramour,  I  think  that  he  might  seize  her 
and  pull  her  back." 

The  limits  of  the  doctrine  of  the  husband's  right  of  restraint  over 
his  wife  are  very  shadowy  and  undefined.  In  this  country  the  right 
has  been  recognized  so  far  as  to  allow  a  husband  to  restrain  his  wife 
from  committing  a  crime, ^^  or  from  interfering  with  his  exercise  of 
parental  authority  over  his  children. ^^  But  it  is  not  probable  that 
any  court  would  go  as  far  as  the  English  court  in  the  first  case  men- 
tioned above,  and  allow  a  husband  to  restrain  his  wife  merely  to  com- 
pel cohabitation  with  him,  or  to  prevent  her  from  doing  acts  not  crim- 


12  2  Kent,  Comm.  181. 

13  Rex  V.  Lister,  1  Strange,  478.  In  this  case  It  was  said  that  when  a 
wife  makes  undue  use  of  her  liberty,  either  by  squandering  away  the  hus- 
band's estate,  or  going  into  lewd  company,  it  is  lawful  for  the  husband  to 
lay  such  a  wife  under  restraint. 

14  In  re  Cochrane  (1840)  8  Dowl.  631. 

16  Reg.  V.  Jackson  (1891)  1  Q.  B.  Div.  671. 

16  Richards  v.  Richards,  1  Grant,  Cas.  (Pa.)  389. 

17  Gorman  v.  State,  42  Tex.  221. 


§§   32-33)  EESTRAINT   AND   CORRECTION    OF    WIFE.  57 

inal,  nor  adulterous  or  tortious,  nor  interfering  with  his  parental  au- 
thority.^* Perhaps,  as  it  would  be  only  reasonable,  he  would  be  per- 
mitted to  prevent  her  from  committing  a  tort  for  which  he,  as  hus- 
band, would  be  civilly  liable.^*  A  man,  it  was  said  by  the  Pennsylvania 
court,  has  a  right  to  a  reasonable  control  of  his  wife's  actions.  "It 
is  a  sickly  sensibility  which  holds  that  a  man  may  not  lay  hands  on  his 
wife,  even  rudely,  if  necessary,  to  prevent  the  commission  of  some  un- 
lawful or  criminal  purpose."  *" 

Chastisement. 

According  to  Blackstone,  and  some  of  the  early  cases,  the  husband 
formerly  had  the  right  to  give  his  wife  moderate  correction. ^^  No 
such  right,  however,  is  recognized  to-day.  Chastisement  is  unlawful 
in  any  case,  and  will  render  the  husband  guilty  of  assault  and  bat- 
tery.22  Further  than  this,  if  sufficiently  severe,  or  often  repeated, 
under  the  statutes,  it  may  entitle  the  wife  to  a  divorce  on  the  ground 
of  cruelty.^ ^     As  was  said  by  Chancellor  Walworth  in  a  New  York 

18  1  Bish.  Mar.,  Div.  &  Sep.  §  1624;  Schouler,  Dom.  Rel.  §  45.  "In  this 
country,"  says  Dr.  Bishop,  "where  we  reject  the  suit  for  the  restitution  of 
conjugal  rights,  repudiating,  therefore,  by  implication,  the  principle  of  a 
compelled  cohabitation,  whereon  it  is  founded,  there  is  apparently  no  just 
ground  for  permitting  a  husband  to  confine,  even  in  his  own  house,  a  sane 
wife,  who  is  simply  unwilling  to  dwell  with  him.  It  is  believed  that  none 
of  our  courts  will  recognize  this  authority.  Still  the  husband  must,  with  us, 
be  permitted  to  exercise  some  restraint;  for  our  law  makes  him  criminally 
responsible  for  her  acts  of  crime  committed  in  his  presence,  and  civilly  for 
her  torts,  whether  he  is  present  or  absent  And  it  would  be  absurd  to  de- 
ny him  all  means  of  avoiding  these  heavy  liabilities.  He  must  have  the 
right  to  the  physical  control  over  her  necessary  to  free  himself."  1  Bish. 
Mar.,  Div.  &  Sep.  §  1624. 

19  1  Bish.  Mar.,  Div.  &  Sep.  §  1624. 

2  0  Richards  v.  Richards,  1  Grant,  Cas.  (Pa.)  389. 

21  1  Bl.  Comm.  445.  "The  husband  hath  by  law  power  and  dominion  over 
his  wife,  and  may  keep  her  by  force  within  the  bounds  of  duty,  but  not  in 
a  violent  or  cruel  manner."  Bac.  Abr.  tit.  "Baron  and  Feme,"  B.  See  State 
V.  Rhodes,  61  N.  G.  453,  98  Am.  Dec.  78. 

2  2  1  Bish.  Mar..  Div.  &  Sep.  §  1G17;  Schouler,  Dom.  Rel.  §  44;  Com,  v. 
McAfee,  108  Mass.  458,  11  Am.  Rep.  383;  Pearman  v.  Pearman,  1  Swab. 
&  T.  601;  Perry  v.  Perry,  2  Paige  (N.  Y.)  501;  Reg.  v.  Jackson  (1891)  1  Q. 
B.  Div.  671;  Abbott  v.  Abbott,  67  Me.  304,  24  Am.  Rep.  27;  Gom.  v.  Barry, 
2  Green,  Gr.  Rep.  286,  note;  People  v.  Winters,  2  Parker,  Cr.  R.  (N.  Y.)  10; 
Poor  V.  Poor,  8  N.  H.  307,  29  Am.  Dec.  664. 

2  3  See  post,  p.  192. 


58  RIGHTS   AND   DUTIES   INCIDENT  TO   COVERTURE.  (Ch.  2 

case:  "Whatever  may  be  the  common  law  on  the  subject,  the  moral 
sense  of  this  community,  in  our  present  state  of  civihzation,  will  not 
permit  the  husband  to  inflict  personal  chastisement  on  his  wife,  even 
for  the  grossest  outrage."  ** 


RIGHT    TO   DETERMINE    FAMILY   DOMICILE. 

34.  The  husband  has  a  right  to  fix  or  to  change  the  family  domicile, 
and  refusal  of  his  ivife  to  foUoTir  him,  ivithout  sufficient  ex- 
cuse, will  amount  to  desertion. 

The  general  rule  is  that  on  marriage  the  domicile  of  the  wife  merges 
in  that  of  her  husband,  and  changes  with  his  during  the  coverture. ^"^ 
He  has  the  power  to  establish  the  family  domicile,  and  it  is  the  duty  of 
the  wife  to  follow  him,  and  her  refusal  to  do  so  without  sufficient  ex- 
cuse amounts  to  desertion.^®  Even  a  promise  before  marriage  not 
to  take  her  away  from  the  neighborhood  of  her  mother  and  friends 
is  not  binding,  and  does  not  justify  her  refusal  to  accompany  him  to 
a  new  domicile. ^^ 

While  the  cases  generally  state  the  rule  to  be  that  the  husband 
has  the  absolute  right  to  establish  the  domicile  in  any  part  of  the  world, 
yet  the  right  is  undoubtedly  not  an  arbitrary  one,  but  one  that  must 
be  exercised  with  discretion,  according  to  the  exigencies  and  condi- 


2  4  Perry  v.  Perry,  2  Paige  (N.  Y.)  501. 

2  8  Dolphin  V.  Robins,  7  H.  L.  Cas.  390;  Greene  v.  Greene,  11  Pick.  (Mass.) 
410;    Pennsylvania  v.  Kavenel,  21  How.  103,  16  L.  Ed.  33;    Davis  v.  Davis, 

30  111.  180;    Hackettstown  Bank  v.  Mitchell,  28  N.  J.  Law,  516. 

26  Hair  v.  Hair,  10  Rich.  Eq.  (S.  C.)  163;  Price  v.  Price,  7  Neb.  552,  106 
N.  W.  657;  Birmingham  v.  O'Neil,  116  La.  1085,  41  South.  323;  Hunt  v. 
Hunt.  20  N.  J.  Eq.  90;   Kennedy  v.  Kennedy,  87  111.  250;    Walker  v.  Laighton, 

31  N.  H.  111.  And  see  Klein  v.  Klein.  96  S.  W.  848,  29  Ky.  Law  Rep.  1042, 
holding  that  it  is  the  duty  of  the  wife  to  accept  such  residence  as  the  hus- 
band may  select  without  unwarranted  parsimony  or  stubbornness  on  his 
part.  See,  also,  Richardson  v.  Stuesser,  125  Wis.  66,  103  N.  W.  261,  69  L. 
R.  A.  829,  holding  that  the  common-law  liability  of  a  husband  to  support 
his  wife  does  not  extend  to  supporting  her  outside  the  matrimonial  home 
reasonably  chosen  by  him,  unless  he  refuses  to  do  so  there,  or  she  resides 
away  therefrom  by  his  consent. 

27  Jac.  Dom.  §§  21.5,  216;  Schouler,  Dom.  Rel.  §§  37,  38;  Franklin  v.  Frank- 
lin, 154  Mass.  515,  28  N.  E.  681,  13  L,  R,  A.  843,  26  Am.  St.  Rep.  266. 


§§   35-36)  CRIMES   OF   MARRIED   WOMEN.  59 

tions  of  the  case.**  Thus  it  was  said  in  a  Vermont  case:**  "While 
we  recognize  fully  the  right  of  the  husband  to  direct  the  affairs  of  his 
own  house,  and  to  determine  the  place  of  abode  of  the  family,  and 
that  it  is  in  general  the  duty  of  the  wife  to  submit  to  such  determina- 
tions, it  is  still  not  an  entirely  arbitrary  power  which  the  husband  ex- 
ercises in  these  matters.  He  must  exercise  reason  and  discretion  in 
regard  to  them.  If  there  is  any  ground  to  conjecture  that  the  husband 
requires  the  wife  to  reside  where  her  health  or  her  comfort  will  be 
jeoparded,  or  even  where  she  seriously  believes  results  will  follow 
which  will  almost  of  necessity  produce  the  effect,  and  it  is  only  upon 
that  ground  that  she  separates  from  him,  the  court  cannot  regard  her 
desertion  as  continued  from  mere  willfulness." 

An  exception  to  the  general  rule  that  the  domicile  of  the  wife  fol- 
lows that  of  the  husband  arises  in  cases  where  the  husband  abandons 
the  wife  and  removes  to  another  state  for  the  purpose  of  obtaining 
a  divorce,  or  when  the  wife  by  reason  of  the  misconduct  of  the  hus- 
band has  been  compelled  to  leave  him.  In  such  cases  the  wife  can  ac- 
quire a  domicile  of  her  own  distinct  from  that  of  the  husband.^ ° 

CRIMES   OF  MARRIED  "WOMEN. 

35.  A  married  woman  is  responsible,  as  if  sole,  for  crimes  voluntarily 

committed  by  ber.  If  she  commits  an  offense  in  tbe  presence 
of  her  husband,  or,  though  not  in  his  immediate  presence, 
near  enough  to  be  under  his  immediate  influence  and  control, 
she  is  presumed  to  have  acted,  not  voluntarily,  but  under  his 
coercion;  and  he  is  responsible,  -ivhile  she  is  excused.  This 
pi-esumption  may  always  be  rebutted  by  show^ing  that  there 
"was  no  coercion. 

36.  There  is  no  reason,  on  principle,  why  the  rule  should  not  apply 

to  all  crimes;  but  in  some  jurisdictions  it  is  held  that  it  does 
not  apply  to  treason,  murder,  or  robbery. 


28  1  Bish.  Mar.,  Div.  &  Sep.  §§  1713,  1714;  Gleason  v.  Gleason,  4  Wis.  G4; 
Ilardenbergh  v.  Hardenbergh,  14  Cal.  Go4;  Boyce  v.  Boyce,  23  N.  J.  Eq.  337; 
Bishop  V.  Bishop,  30  Pa.  412;  Molony  v.  Molony,  2  Addams,  Ecc.  249;  Keech 
V.  Keech,  38  Law  J.  Prob.  &  Mat  7;  Powell  v.  Powell,  29  Vt.  148;  Albee 
v.  Albee,  141  111.  550,  31  N.  E.  153.  See,  also,  In  re  Baurens,  IIG  La.  136, 
41  South.  442,  where  it  is  held  that  the  obligation  of  a  husband  to  provide 
for  his  wife  and  children  at  the  matrimonial  domicile  is  not  discharged  if, 
by  reason  of  his  cruelty,  the  wife  is  compelled  to  seek  shelter  with  her 
minor  children  at  the  residence  of  her  father  in  a  neighboring  parish. 

29  Powell  V.  Powell,  29  Vt.  148.  «o  See  post,  p.  189. 


60  RIGHTS  AND  DUTIES   INCIDENT  TO  COVERTURE.  (CK.  2 

As  a  general  rule,  a  married  woman  is  answerable  personally  for 
her  crimes,  as  if  she  were  sole.^^  Where,  however,  she  commits  an 
offense  in  the  presence  of  her  husband,  she  is  presumed  to  have  acted 
under  his  coercion,  and  he  must  suffer  therefor,  while  she  is  excused 
on  the  ground  of  compulsion.  An  early  case  on  this  point,  decided 
in  1352,  was  a  case  in  which  a  woman  was  indicted  for  larceny. 
The  jury  found  "that  she  did  it  by  coercion  of  her  husband,  in  spite 
of  herself,"  and  she  was  acquitted.'^  The  fact  that  the  wife  was  ac- 
tive in  committing  the  crime,  or  even  more  active  than  her  husband, 
does  not  necessarily  render  her  guilty,  though  this  fact,  of  course, 
may  tend  to  rebut  the  presumption  of  coercion ;  for  her  guilt  depends, 
not  upon  the  fact  of  her  activity,  but  upon  whether  that  activity  was 
voluntary,  or  caused  by  her  husband's  coercion.^'  The  rule,  accord- 
ing to  the  weight  of  authority,  does  not  apply  to  treason  or  murder. 
"As  to  murder,  if  husband  and  wife  both  join  in  it,  they  are  both  equal- 
ly guilty."  ^*  It  has,  however,  been  applied  even  in  the  case  of  mur- 
der; and,  on  principle,  there  is  no  reason  why  it  should  not  be.^"*  It 
applies  to  assault  with  intent  to  kill,  ^'  to  burglary,  *^  and,  by  the 
weight  of  opinion,  to  robbery.'* 


81  A  married  woman  cannot  be  held  criminally  liable  for  the  violation  of 
a  contract  under  a  statute  declaring  such  violation  an  offense,  if  the  con- 
tract is  void.  State  v.  Robinson,  143  N.  C.  620,  56  S.  E.  918.  Since  a  hus- 
band and  wife  are  in  law  one  person,  they  cannot  between  themselves  be 
guilty  of  conspiracy.  People  v.  Miller,  82  Cal.  107,  22  Pac.  934;  Merrill  v. 
Marshall,   113  111.  App.  447. 

3  2  Anon.,  Lib.  Ass.  137,  pi.  40.  And  see  Clark,  Cr.  Law,  77;  Clark,  Cr. 
Cas.  141;  Anon.,  Kelyng,  31;  Reg.  v.  Dykes,  15  Cox,  Cr.  Cas.  771;  Rex  v. 
Price,  8  Car.  &  P.  19;  Com.  v.  Neal,  10  Mass.  152,  6  Am.  Dec.  105;  Davis  v. 
State,  15  Ohio,  72,  45  Am.  Dec.  559;  State  v.  Houston,  29  S.  C.  108.  6  S.  B. 
943;  Com.  V.  Daley,  148  Mass.  11,  18  N.  E.  579;  State  v.  Harvey,  130  Iowa, 
394,  106  N.  W.  938;  State  v.  Kelly,  74  Iowa,  589,  38  N.  W.  503;  State  v. 
Bell,  29  Iowa,  316;  Roberts  v.  People,  19  Mich.  401;  Mulvey  v.  State,  43 
Ala.  316,  94  Am.  Dec.  684;  State  v.  Baker,  110  Mo.  7,  19  S.  W.  222,  33  Am. 
St.  Rep.  414 

3  3  State  V.  Houston,  29  S.  C.  108,  6  S.  E.  943. 

3  4  Anon.,  Kelyng,  31.  And  see  Davis  v.  State,  15  Ohio,  72,  45  Am.  Dec. 
559;  Bibb  v.  State,  94  Ala.  31,  10  South.  506,  33  Am.  St  Rep,  88.  See  dic- 
tum in  Com.  v.  Neal,  10  Mass.  152,  6  Am.  Dec.  105. 

3  5  State  V.  Kelly,  74  Iowa,  589,  38  N.  W.  503. 

36  Roberts  v.  People,  19  Mich.  401. 

8  7  Anon.,  Kelyng,  31;    State  v.  Bell,  29  Iowa,  316. 

8  3  Reg.  V.  Dykes,  15  Cox,  Or.  Cas.  771;   People  v.  Wright,  38  Mich.  744,  31 


§§    35-36)  CRIMES   OF   MARKIED   WOMEN.  61 

This  presumption  does  not  arise  from  the  mere  command  of  her  hus- 
band. She  must  have  been  in  his  presence,  or  so  near  that  he  could 
have  exerted  an  immediate  influence  and  control  over  her.  There  is 
no  "legal  presumption  that  acts  done  by  a  wife  in  her  husband's  ab- 
sence are  done  under  his  coercion  or  control.  Indeed  if  she,  in  his 
absence,  do  a  criminal  act,  even  by  his  order  or  procurement,  her  cover- 
ture will  be  no  defense."  ^*  She  need  not,  however,  have  been  in  his 
immediate  presence,  but  it  is  sufficient  if  she  was  near  enough  to  be 
under  his  influence  and  control.  It  was  so  held  where  a  woman  was 
indicted  for  an  unlawful  sale  of  intoxicating  liquors,  and  it  appeared 
that  when  she  made  the  sale  her  husband  was  not  in  the  room  with 
her,  but  was  on  the  premises.*"  In  order  to  establish  the  fact  of  the 
husband's  presence,  it  is  not  necessary  to  show  that  the  act  was  done 
literally  in  his  sight.  If  he  was  near  enough  for  the  wife  to  be  under 
his  immediate  influence  and  control,  it  is  sufficient,  though  he  may  not 
have  been  in  the  same  room ;  for  if  he  was  on  the  premises,  and  near 
at  hand,  a  momentary  absence  from  the  room,  or  a  momentary  turn- 
ing of  his  back,  might  still  leave  her  under  his  influence.*^  "No  exact 
rule,  applicable  to  all  cases,  can  be  laid  down  as  to  what  degree  of 
proximity  will  constitute  such  presence,  because  this  may  vary  with 
the  varying  circumstances  of  particular  cases;  and  where  the  wife  did 
not  act  in  the  direct  presence  of  her  husband,  or  under  his  eye,  it  must 
usually  be  left  to  the  jury  to  determine  incidentally  whether  his  pres- 
ence was  sufficiently  immediate  or  direct  to  raise  the  presumption.  But 
the  ultimate  question,  after  all,  is  whether  she  acted  under  his  coer- 
cion or  control,  or  of  her  own  free  will,  independently  of  any  coer- 
cion or  control  by  him;  and  this  is  to  be  determined  in  view  of  the 
presumption  arising  from  his  presence,  and  of  the  testimony  or  cir- 
cumstances tending  to  rebut  it,  if  any  such  exist."  *^ 

From  what  has  been  said,  it  will  be  seen  that  the  presumption  of 
coercion  is  not  conclusive,  even  where  the  wife  acted  in  the  immediate 


Am.  Rep.  SSI;  Miller  v.  State,  25  Wis.  384;  Com.  v.  Daley,  148  Mass.  11, 
18  N.  E.  579 ;  Davis  v.  State,  15  Ohio,  72,  45  Am.  Dec.  559.  Contra :  Bibb 
V.  State,  94  Ala.  31,  10  South.  506,  33  Am.  St.  Rep.  88. 

30  Com.  V.  Butler,  1  Allen  (Mass.)  4;  Com.  v.  Feeney,  13  Allen  (Mass.)  560; 
State  V.  Potter,  42  Vt.  495;  Com.  v,  Munsey,  112  Mass.  287;  State  v.  Shee, 
13  R.  I.  535 ;   Rex  v.  Morris,  Russ.  &  R.  270 ;    Seller  v.  People,  "77  N.  Y.  411. 

40  Com.  V.  Burk,  11  Gray  (Mass.)  437;   Com.  v.  Munsey,  112  Mass.  287. 

*i  Com.  V.  Munsey,  112  Mass.  287. 

*2  Com.  V.  Daley,  148  Mass.  11,  18  N.  E.  579. 


62  RIGHTS   AND   DUTIES   INCIDENT   TO   COVERTURE.  (Ch.  2 

presence  of  her  husband ;  but  it  may  always  be  rebutted  by  showing 
to  the  satisfaction  of  the  jury  that  she  acted  of  her  own  free  will, 
and  not  under  coercion.*^ 

In  some  states  the  common-law  rule  exempting  a  married  woman 
from  criminal  liability  for  acts  done  in  the  presence  of  her  husband, 
in  the  absence  of  a  showing  that  she  acted  without  coercion,  has  been 
changed  by  statute.  In  Georgia,  for  instance,  by  statute,  a  wife  is  not 
excused  by  the  mere  presence  of  her  husband ;  but  it  must  be  made  to 
appear,  in  order  to  excuse  her,  that  "violent  threats,  command,  or  co- 
ercion were  used"  by  him.** 

CRIMES  AS  BETWEEN  HUSBAND  AND  "WIFE. 

37.  Generally,  husband  and  "wife  are  criminally  liable  for  criminal 
acts  committed  against  each  other.  Because  of  the  relation, 
however,  at  common  law 

(a)  Neither  can  commit  larceny,  burglary,  or  arson  against  the  oth- 

er;   nor  is  one  who  assists  the  wife  guilty  of  larceny. 
EXCEPTION — This  does  not  apply  w^here  the  w^ife  is  an  adulteress, 
or    elopes    for    the    purpose    of    adultery,    and    steals    her    hus- 
band's  property. 

(b)  The  husband  cannot  commit  a  rape  upon  his  wife,  except: 
EXCEPTION — As  principal  in  the  second  degree,  or  as  accessory,  by 

abetting   or  assisting  another  to  ravish  her. 

The  principle  that,  in  the  eye  of  the  law,  husband  and  wife  are  one 
person,  prevents  certain  acts  by  the  one  or  the  other  of  them  from  be- 
ing a  crime,  though  it  would  be  otherwise  were  the  same  act  commit- 
ted against  a  stranger.  It  is  well  settled,  for  instance,  that  at  common 
law  neither  a  husband  nor  a  wife  can  commit  larceny  from  the  other. *^ 

4  3  Res.  V.  Cruse,  8  Car.  &  P.  553;  Blakeslee  v.  Tyler.  55  Conn.  397,  11  Atl. 
855;  People  v.  Wright,  38  Midi.  744,  31  Am.  Rep.  331;  Miller  v.  State,  25 
Wis.  3S4;  State  v.  Cleavos,  59  Me.  298,  8  Am.  Rep.  422;  Reg.  v.  Torpey,  12 
Cox,  Cr.  Cas.  45;  Wagener  v.  Bill,  19  Barb.  (N.  Y.)  321;  Com.  v.  Eagau,  103 
Mass.  71 ;  U.  S.  v.  Terry  (D.  C.)  42  Fed.  317.  As  by  sLowing  that  the  husband 
was  crippled,  and  incapable  of  coercion.     Reg.  v.  Cruse,  supra. 

44  Bell  V.  State,  92  Ga.  49,  IS  S.  E.  ISG. 

40  Clark,  Cr.  Law,  247;  Reg.  v.  Kenny,  13  Cox,  Cr.  Cas.  397,  2  Q.  B.  Div. 
307;  Reg.  v.  Tollett,  Car.  &  M.  112 ;  Thomas  v.  Thomas,  51  111.  162 ;  Snyder 
V.  People,  26  Mich.  106,  12  Am.  Rep.  302;  Com.  v.  Hartnett,  3  Gray  (Ma.ss.) 
450;  Overton  v  State,  43  Tex.  616;  State  v.  Banks,  48  Ind.  197;  Lamphier 
V.  State,  70  Ind.  317.  But  under  the  married  women's  property  act  (St.  45 
&  46  Vict.  c.  75),  §§  12,  16,  the  wife  may  be  convicted  of  larceny  of  her  bus- 


§   37)  CRIMES   AS    BETWEEN   HUSBAND   AND   WIFE.  63 

And  so  far  is  this  doctrine  carried  that  a  third  person  who  assists  a 
wife  in  taking  her  husband's  property  is  not  guilty  of  larceny.**  An 
exception  to  this  rule  is  made  in  cases  where  a  wife  becomes  an  adul- 
teress. If  she  then  takes  her  husband's  property,  animo  furandi,  she 
commits  larceny ;  and  so  does  her  paramour,  if  he  assists  her  in  taking 
it.*^  "The  general  rule  of  law  is  that  a  wife  cannot  be  found  guilty 
of  larceny  for  stealing  the  goods  of  her  husband,  and  that  is  upon  the 
principle  that  the  husband  and  wife  are,  in  the  eye  of  the  law,  one 
person ;  but  this  rule  is  properly  and  reasonably  qualified  when  she 
becomes  an  adulteress.  She  thereby  determines  her  quality  of  wife, 
and  her  property  in  her  husband's  goods  ceases."  ** 

On  the  same  principle  of  unity  of  husband  and  wife,  with  the  con- 
sequent right  of  each  to  the  joint  possession  and  use  of  the  other's 
property,  neither  husband  nor  wife  can  commit  burglary  or  arson,  as 
against  the  other's  dwelling  house.*® 

A  husband  has  a  legal  right  to  sexual  intercourse  with  his  wife, 
and  therefore  he  cannot  be  guilty  of  rape,  in  having  intercourse  with 
her  forcibly  and  against  her  will.^"  He  may,  however,  be  guilty  as  a 
principal  in  the  second  degree,  or  as  accessory,  according  to  the  cir- 
cumstances, if  he  aids  or  abets  another  in  a  rape  upon  her.^^ 

band's  soods  wrongfully  taken  when  leaving,  deserting,  or  about  to  leave  or 
desert  lum.  Rex  v.  James,  71  Law  J.  K.  B.  211,  [1902]  1  K.  B.  540,  SG  Law 
T.  202,  50  Wkly.  Rep.  286,  66  J.  P.  217,  20  Cox,  Cr.  Cas.  156. 

46  Clark,  Cr.  Law,  247;  Reg.  v.  Tollett,  Car.  &  M.  112;  and  cases  in  the 
following  note. 

47  Reg.  v.  Avery,  8  Cox,  Cr.  Cas.  184;  Reg.  v.  Thompson,  2  Craw.  &  D.  491; 
Rex  V.  Clark,  1  Moody,  Cr.  Cas.  376,  note;  Reg.  v.  Featherstone,  6  Cox,  Cr. 
Cas.  376;  Rex  v.  Tolfree,  1  Moody,  Cr.  Cas.  243;  Reg.  v.  Tollett,  Car.  &  M. 
112;  State  v.  Banks,  48  Ind.  197,  198;  People  v.  Schuyler,  6  Cow.  (N.  Y.) 
572;  Clark,  Cr.  Law,  247,  248.  This,  it  has  been  said,  does  not  apply  where 
the  wife  merely  carries  away  her  necessary  apparel.  State  v.  Banks,  48 
Ind.  197,  198.     But  see  Reg.  v.  Tollett,  Car.  &  M.  112. 

4  8  state  V.  Banks,  48  Ind.  197,  198. 

49  Snyder  v.  People,  26  Mich.  106,  12  Am.  Rep.  802;  Rex  v.  March.  1  Moody. 
Cr.  Cas.  1S2 ;  State  v.  Toole,  29  Conn.  342,  76  Am.  Dec.  602 ;  Adams  v.  State, 
62  Ala.  177;  Clark,  Cr.  Law,  229;  Clark,  Cr.  Cas.  307.  Contra,  under  modern 
statutes.  Garrett  v.  State,  lt9  Ind.  527,  10  N.  E.  570.  But  see  cases  cited 
above,  in  which  it  is  shown  that  the  married  women's  acts  are  not  to  be 
construed  as  changing  the  common  law.  i 

6  0  Clark,  Cr.  Law,  190. 

51  Strang  v.  People,  24  Mich.  13;  People  v.  Chapman,  02  Mich.  280,  28  N. 
W.  896,  4  Am.  St.  Rep.  857;  State  v.  Dowell,  106  N.  C.  722,  11  S.  E.  525,  8 
L.  R.  A.  297,  19  Am.  St.  Rep.  568. 


64  RIGHTS  AND   DUTIES   INCIDENT  TO   COVERTURE.  (Ch.  2 

With  the  exceptions  above  stated,  husband  and  wife  are  generally 
liable  to  the  criminal  law  for  criminal  acts  committed  against  each 
other.  If  either  kills  the  other,  he  or  she  is  liable  for  the  homicide.  So 
either  of  them  is  criminally  liable  for  an  assault  and  battery  on  the 
other." 

TORTS    OF   MARRIED    WOMEN. 

38.  At   common  law   a  husband,   during  coverture,   is   liable  for  tbe 

torts  committed  by  his  wife,  either  before  or  during  coverture. 
This  liability  ceases,  however,  when  the  coverture  is  deter- 
mined by  the  death  of  either  party,  or  by  a  divorce. 

39.  The  rules  governing  a  wife's  liability  for  her  own  torts  are  these: 

(a)  She   is   liable,  jointly  with  her  husband   during  coverture,   and 

solely  after  his  death  or  a  divorce, 

(1)  For  tortsi  committed  in  his  absence,  whether  committed  by 

his  direction  or  comnuand,  or  not. 

(2)  For  torts  committed  in  his  presence,  but  not  by  his  direc- 

tion or  command,  express  or  implied. 

(b)  She  is  not  liable  at  all  for  torts  committed  in  his  presence,  and 

by  his  direction  or  command,  but  is  excused  on  the  ground  of 
coercion. 

(c)  Torts  committed  by  a  wife  in  her  husband's  actual  or  construc- 

tive presence  are  presumed  to  have  been  committed  by  his  di- 
rection or  command;  but  this  presumption  is  prima  facie 
only,  and  may  be  rebutted. 

40.  Where  a  married  woman's  tort  is  so  connected  with  an  attempted 

contract  by  her  that  to  hold  her  liable  therefor  would  be  to 
recognize  the  contract,  neither  she  nor  her  husband  is  liable 
at  common  law. 

41.  These   rules   of   the   common  law   have   been   greatly  modified   by 

modern  statutes,  in  most  jurisdictions,  removing  the  disabili- 
ties of  married  women,  and  by  those  taking  from  the  husband 
the  rights  which  the  common  law  gave  him  in  respect  to  his 
w^ife's  property.      Thus — 

(a)  In  some  states  a  husband  is  no  longer  liable  for  the  torts  of  his 

wife,  unless  he  participated  in  their  commission- 

(b)  In  other  states  he  is  liable  for  her  personal  torts,  like  slander 

or  assault,  but  not  for  torts  committed  in  the  control  of  her 
separate  property. 

(c)  Where   married   women   have   by    statute   been   given   the   power 

to  contract,  they  may  be  liable  for  torts  in  connection  with 
their   contracts. 

82  Clark,  Cr.  Law,  212,  213;  Ctom.  v.  McAfee,  108  Mass.  458,  11  Am.  Rep. 
3&3;  State  v.  Oliver,  70  N.  C.  GO;  State  v.  Finley,  4  Pennewill  (Del.)  29,  55 
Atl.  1010;  Reg.  v.  Jackson  [1891]  1  Q.  B.  Div.  G71;  ante,  p.  57. 


§§    38-41)  TORTS    OF   MARRIED   WOMEN.  65 

Common-Lazv  Doctrine. 

At  common  law  a  husband  is  liable  for  the  frauds  and  other  torts 
of  his  wife,  whether  they  were  committed  by  her  before  marriage," 
or  during  coverture."^*  One  of  the  reasons  for  this  doctrine  was  that 
the  unity  of  husband  and  wife  rendered  the  wife  incapable  of  be- 
ing sued  alone.  Her  husband  had  to  be  joined  in  all  actions  against 
her.^^  Another  reason  was  that  the  husband  became  the  absolute 
owner  of  his  wife's  personal  property,  and  had  the  right  to  receive 
her  earnings  and  the  rents  and  profits  of  her  real  estate,  so  that  it 
was  only  just  to  hold  him  liable  for  her  torts.**"  Another  considera- 
tion was  that  he  should  not  permit  her  to  commit  torts."  The  lia- 
bility, however,  was  not  based  on  any  idea  that  he  was  himself  guilty 
of  her  torts,  even  in  contemplation  of  law."  The  liability  exists  even 
where  the  husband  is  separated  from  his  wife,  so  long  as  the  marriage 
has  not  been  dissolved.^® 

Where  a  wife  acts  in  the  absence  of  her  husband,  either  by  or  with- 
out his  command,^"  or  where  she  acts  in  his  presence,  but  of  her  own 


63Macq.  Husb.  &  W.  72;  Schouler,  Husb.  &  W.  §  134;  Palmer  v.  Walv<>- 
field,  3  Beav.  227;  Hawk  v.  Harman,  5  Bin.  (Pa.)  43;  Hubble  v.  Fogartie,  <J 
Rich.  Law  (S.  C.)  413,  45  Am.  Dee.  775;  Phillips  v.  Kicbardson,  4  J.  J.  Marsh 
(Ky.)  212 ;  Rowing  v.  Manly,  49  N,  Y.  192,  10  Am.  Rep.  346. 

54  2  Kent,  Comm.  149 ;  Kowing  v.  Manly,  49  N.  Y.  192,  10  Am.  Rep.  346  • 
Head  v.  Briscoe,  5  Car.  &  P.  484 ;  Flesh  v.  Lindsay,  115  Mo.  1,  21  S.  W.  90". 
37  Am.  St.  Rep.  374;  Jag.  Torts,  216-223 ;  Baker  v.  Young,  44  111.  42,  92  Am 
Dec.  149;  Fowler  v.  Chichester,  26  Ohio  St.  9;  Wright  v.  Kerr,  Add.  (Pa.)  13- 
Vine  V.  Saunders,  5  Scott,  359;  Ball  v.  Bennett,  21  Ind.  427,  83  Am.  Dec.  356 
Hinds  V.  Jones,  48  Me.  348;  Dailey  v.  Houston,  58  Mo.  301;  Carleton  v.  Hay 
wood,  49  N.  H.  314;  Jackson  v.  Kirby,  37  Vt.  448;  Brazil  v.  Moran,  8  Minn 
236  (Gil.  205),  83  Am.  Dec.  772;  Holtz  v.  Dick,  42  Ohio  St.  23,  51  Am.  Rex) 
791;  Heckle  v.  Lurvey,  101  Mass.  344,  3  Am.  Rep.  366. 

5  6  Jag.  Torts,  217;  Baker  v.  Braslin,  16  R.  I.  635,  18  Atl.  1039,  6  L.  R.  A. 
718. 

5  6  Martin  v.  Robson,  65  111.  129,  16  Am,  Rep.  578. 
5  7  Martin  v.  Robson,  65  111.  129,  16  Am.  Rep.  578. 
5  8  Baker  v.  Braslin,  16  R.  I.  635,  18  Atl.  1039,  6  L.  R.  A.  718. 
5  9  Head  v.  Briscoe,  5  Car.  &  P.  485;  Ferguson  v.  Neilson,  17  R.  I.  SI,  20 
Atl.  229,  9  L.  B.  A.  155,  33  Am.  St.  Rep.  855. 

«o  Cassin  v.  Delany,  38  N.  Y.  178;  Head  v.  Briscoe,  5  Car.  &  P.  484;  Cat- 
terall  v.  Kenyon,  3  Q.  B.  310;  Wbitmore  v.  Delano,  6  N.  H.  543;  Matthews  v 
Tiestel,  2  E.  D.  Smith  (N.  Y.)  90;  Handy  v.  Foley,  121  Mass.  259,  23  Am. 
Rep.  270 ;  Brazil  v.  iloran,  8  Minn.  236  (Gil.  205),  S3  Am.  Dec.  772 ;  Wheeler 
&  Wilson  Mfg.  Co.  v.  Heil,  115  Pa.  487,  8  Atl.  616,  2  Am.  St  Rep.  575;  SmttJi 

TIFF.P.&  D.Rel.(2d  Ed.)— 5 


66  RIGHTS  AND   DUTIES   INCIDENT  TO   COVERTURE.  (Ch.  2 

volition,  and  without  any  coercion  by  him,®^  she  also  is  liable;  and 
they  not  only  may,  but  must,  be  sued  jointly.  At  common  law  this 
liability  is  joint,  and  renders  it  necessary  to  sue  the  husband  and  wife 
jointly.  It  is  not  enough  to  sue  either  the  wife  or  the  husband  alone.'* 
Where,  however,  a  tort  is  committed  by  a  wife  in  the  presence  of  her 
husband,  and  by  his  command  or  coercion,  she  is  not  liable  at  all.  He 
only  is  liable,  and  must  be  sued  alone.®*  To  thus  exempt  a  married 
woman  from  liability  for  her  tortious  acts,  two  things  must  concur: 
she  must  have  been  in  her  husband's  presence,  actually  or  construc- 
tively; and  she  must  have  acted  by  his  express  or  implied  command. 
An  act  by  his  command,  but  not  in  his  presence,  renders  her  liable. 
and  so  it  is  if  she  does  an  act  in  his  presence,  but  of  her  own  volition, 
and  not  by  his  command.'* 

If  it  is  shown  that  the  tort  was  committed  by  the  wife  in  her  hus- 
band's presence,  and  nothing  further  appears,  the  presumption  of  law 
is  that  she  acted  under  coercion  by  him,  so  as  not  to  be  liable  her- 
self,'°     But  the  presumption  is  prima  facie  only,  and  may  always  be 


V.  Taylor,  11  Ga.  22;  Marshall  v.  Oakes,  51  Me.  308;  Heckle  v.  Lurvey,  101 
Mass.  344,  3  Am.  Rep.  366. 

61  Hyde  v.  S.,  12  Mod.  246;  Vine  v.  Saunders,  5  Scott,  359;  Roadcap  v.  Sipe, 
6  Grat.  (Va.)  213 ;  Cassin  v.  Delany,  38  N.  Y.  178 ;  Marshall  v.  Oakes,  51  Me. 
308;  Carleton  v.  Haywood,  49  N.  H.  314;  Brazil  v.  Moran,  8  Minn.  236  (Gil. 
205),  83  Am.  Dec.  772 ;  Simmons  v.  Brown,  5  R.  I.  299,  73  Am.  Dec.  66 ;  Hen- 
derson V.  Wendler,  39  S.  C.  555,  17  S.  E.  851. 

62  Eversley,  Dom.  Rel.  295;  Mitchinson  v.  Hewson,  7  Term  R.  318;  Mar- 
shall V.  Oakes,  51  Me.  308.  "For  any  wrong  committed  by  her,  she  is  liable, 
and  her  husband  cannot  be  sued  without  her.  Neither  can  she  be  sued 
without  her  husband."  Per  Erie,  C.  J.,  in  Capel  v.  Powell,  34  Law  J.  C.  P. 
168,  17  C.  B.  (N.  S.)  743.    And  see  the  cases  in  the  two  preceding  notes. 

63  Cassin  v.  Delany,  38  N.  Y.  178;  Kosminsky  v.  Goldberg,  44  Ark.  401; 
Brazil  v.  Moran,  8  Minn.  236  (Gil.  205),  83  Am.  Dec.  772;  Johnson  v.  Mc- 
Keown,  1  McCord  (S.  C.)  578,  10  Am.  Dec.  698 ;  Ball  v.  Bennett,  21  Ind.  427, 
83  Am.  Dec.  350 ;  Dohorty  v.  Madgett,  58  Vt.  323,  2  Atl.  115 ;  Flesh  v.  Lindsay, 
115  Mo.  1,  21  S.  W.  907,  37  Am.  St  Rep.  374;  Dailey  v.  Houston,  58  Mo.  361. 

64  "The  authorities  are  clear  that,  when  a  tort  or  felony  of  any  inferior  de- 
gree is  committed  by  the  wife  in  the  presence  and  by  the  direction  of  her  hus- 
band, she  is  not  personally  liable.  To  exempt  her  from  liability,  both  of 
these  concurrent  circumstances  must  exist,  to  wit,  the  presence  and  the  com- 
mand of  the  husband.  An  offense  by  his  direction,  but  not  in  his  presence, 
does  not  exempt  her  from  liabilitj';  nor  does  his  presence,  if  unaccompanied 
by  his  direction."     Cassin  v.  Delany,  38  N.  Y.  178. 

65  Cooley,  Torts,  115;  Emmons  v.  Stevane,  73  N,  J.  Law,  349,  64  Atl.  1014; 
Kosminsky    v.    Goldberg,    44    Ark.    401;     Marshall    v.    Oakes,    51    Me.    308; 


§§    38-41)  TORTS    OF   MARRIED   WOMEN.  67 

rebutted,  so  as  to  render  her  liable  by  showing  that  she  acted  of  her 
own  free  will,  and  not  by  her  husband's  direction;  and,  of  course,  this 
may,  and  generally  must,  be  shown  by  the  circumstances  surrounding 
the  commission  of  the  act.®"  "His  presence  furnishes  evidence  and 
affords  a  presumption  of  his  direction,  but  it  is  not  conclusive,  and  the 
truth  may  be  established  by  competent  evidence."  "'' 

In  order  that  an  act  may  be  said  to  have  been  committed  by  the 
wife  in  her  husband's  presence,  it  is  not  necessary  that  it  shall  have 
been  done  in  his  sight.  It  is  sufificient  if  she  was  near  enough  to  be 
under  his  immediate  influence  and  control.  No  exact  rule,  applicable 
to  all  cases,  can  be  laid  down  as  to  what  degree  of  proximity  will  con- 
stitute such  presence,  because  this  may  vary  with  the  varying  circum- 
stances of  each  case.°^  The  question  has  already  been  considered,  in 
treating  of  the  crimes  of  married  women."® 

The  liability  of  a  husband  for  his  wife's  torts,  not  in  any  way  par- 
ticipated in  by  him,  whether  committed  before  or  after  marriage,  is 
not  based  on  any  idea  that  the  husband  is  a  tort-feasor;  but  one  of 
the  chief  reasons  of  it  is  because  the  wife  cannot,  at  common  law,  be 
sued  alone.  It  follows,  in  so  far  as  this  reason  is  concerned,  that  the 
husband's  liability  continues  only  during  coverture.  And  it  is  held  that 
if  not  reduced  to  judgment  before  her  death,  or  a  divorce,  the  cause 
of  action  ceases,  as  against  him.^"  On  his  death  she  is  solely  liable, 
and,  as  there  is  nothing  to  prevent  her  being  sued  alone,  the  cause  of 

Brazil  v.  Moran,  8  Minn.  236  (Gil.  205),  S3  Am.  Dec.  772;  Carleton  v.  Hay- 
wood, 49  N.  H.  314;  Seller  v.  People,  77  N,  Y.  411 ;  Hildreth  v.  Camp,  41  N. 
J.  Law,  306. 

06  Marshall  v.  Oakes,  51  Me.  308;  BrazU  v.  Moran,  8  Minn.  236  (Gil.  205), 
S3  Am.  Dec.  772 ;  Roadcap  v.  Sipe,  6  Grat  (Va.)  213 ;  Simmons  v.  Brown,  5 
R.  I.  299,  73  Am.  Dec.  66;  Griffin  v.  Reynolds,  17  How.  609,  15  L.  Ed.  229; 
Carleton  v.  Haywood,  49  N.  H.  314;  Handy  v.  Foley,  121  Mass.  259,  23  Am. 
Rep.  270;  Miller  v.  Sweitzer,  22  Mich.  391;  Cassin  v.  Delany,  3S  N.  Y.  178; 
Heckle  v.  Lurvey,  101  Mass.  344,  3  Am.  Rep.  306;  McElfresh  v.  Kirkendall, 
36  Iowa,  224;  Fowler  v.  Chichester,  26  Ohio  St.  9;  Estill  v.  Fort,  2  Dana 
(Ky.)  237;    Henderson  v.  Wendler,  39  S.  C.  555,  17  S.  E.  851. 

67  Cassin  v.  Delany,  38  N.  Y.  178. 

6  8  Com.  V.  Munsey,  112  Mass.  287. 

60  Ante,  p.  59,  and  cases  there  cited. 

ToCooley,  Torts,  115;  Jag.  Torts,  217;  Wright  v.  Leonard,  11  C.  B.  (N.  S.) 
258,  266;  Reeve,  Dom.  Rel.  100;  Phillips  v.  Richardson,  4  J.  J.  Marsh.  (Ky.) 
212;  Ferguson  v.  Collins,  8  Ark,  241;  Capel  v.  Powell,  17  C.  B.  (N.  S.)  743: 
Rowing  V.  Maaly,  49  N.  Y.  192,  10  Am.  Rep.  346.  But  see  Johnson  v.  Mc- 
Keown,  1  McCord  (S.  C)  578,  10  Am.  Dec.  098 ;   Cassiu  v.  Delany,  38  N.  Y.  178. 


68  RIGHTS  AND   DUTIES  INCIDENT  TO   COVERTURE.  (Ch.  2 

action  survives  against  her.''^  Of  course,  if  it  is  shown  that  the  hus- 
band actually  commanded  his  wife  to  commit  the  tort,  or  otherwise 
actually  participated  in  its  commission,  he  is  liable  as  an  actual  tort- 
feasor, and  not  merely  because  he  is  her  husband/*  It  follows  that 
he  could  be  sued  therefor  after  her  death;  the  action  being  for  his 
own  tort,  and  not  for  hers.  Further  than  this,  if  a  husband  authorizes 
his  wife  to  act  for  him  as  agent,  he  will  be  liable  for  her  acts  as 
agent.  ^^ 

Torts  Connected  with  Contracts. 

At  common  law,  since  a  married  woman  was  incapable  of  binding 
herself  by  contract,  she  could  not  be  held  liable  for  a  tort  when  this 
would  have  the  effect  of  indirectly  making  her  liable  on  contract.  For 
instance,  it  has  been  held  that  an  action  cannot  be  maintained  at  com- 
mon law  against  a  husband  and  wife  for  her  false  and  fraudulent  rep- 
resentation that  she  was  a  widow  at  the  time  she  executed  a  bond 
and  mortgage.^*  In  Fairhurst  v.  Liverpool  Adelphi  Association,^' 
where  it  was  held  that  a  husband  and  wife  could  not  be  sued  in  tort 
for  a  false  and  fraudulent  representation  by  the  wife  that  she  was  sole 
at  the  time  of  signing  a  note.  Pollock,  C.  B.,  said:  "A  feme  covert 
is  unquestionably  incapable  of  binding  herself  by  a  contract.  It  is  al- 
together void,  and  no  action  will  lie  against  her  husband  or  herself 
for  the  breach  of  it.  But  she  is  undoubtedly  responsible  for  all  torts 
committed  by  her  during  coverture,  and  the  husband  must  be  joined  as 
a  defendant.  They  are  liable,  therefore,  for  frauds  committed  by  her 
on  any  person,  as  for  any  other  personal  wrongs.  But  when  the  fraud 
is  directly  connected  with  the  contract  with  the  wife,  and  is  the  means 
of  effecting  it,  and  parcel  of  the  same  transaction,  the  wife  cannot  be 
held  responsible,  and  the  husband  be  sued  for  it  together  with  the 
wife."  ^®  On  the  same  principle  it  has  been  held  that  a  married  wo- 
man, even  though  living  apart  from  her  husband,  and  maintaining  a 


Ti  Rigley  v.  Lee,  Oro.  Jac.  356;  Baker  v.  Braslin,  16  R.  I,  635,  18  Atl.  1039, 
6  L.  R.  A.  718;  Appeal  of  Franklin's  Adm'r,  115  Pa.  534,  6  Atl.  70,  2  Am.  St. 
R«p.  583. 

72  See  Handy  v.  Foley,  121  Mass.  250,  23  Am.  Rep.  270;  Flesh  v.  Lindsay, 
115  Mo.  1,  21  S.  W.  907,  37  Am.  St.  Rep.  374. 

7  3  Taylor  v.  Green,  8  Car.  &  P.  31G. 

T*  Keen  v.  Coleman,  39  Pa.  299,  SO  Am.  Dec.  524. 

T6  9  Exch.  422,  23  Law  J.  Exch.  163. 

T8Aud  see  Wright  v.  Leonard,  11  C.  B.  (N.  S.)  258;  Cooper  v.  Witham,  1 
Lev.  247;    Woodward  v.  Barnes,  46  Vt  332,  14  Am.  Rep.  626;    Trust  Go.  v. 


§§    38-41)  TORTS   OF   MARRIED   WOMEN.  69 

separate  establishment  with  her  own  means,  is  not  liable  for  the  tort 
of  a  servant  hired  by  her;  for,  as  she  is  incapable  of  contracting,  she 
cannot  occupy  the  position  of  a  master  or  principal,  and  the  rule  re- 
spondeat superior  therefore  cannot  apply."  "The  general  principle 
that,  for  the  torts  or  frauds  of  the  wife,  an  action  may  be  sustained 
against  her  and  her  husband,  applies  only  to  torts  simpliciter,  or  cases 
of  pure,  simple  tort,  and  not  where  the  substantive  basis  of  the  tort  is 
the  contract  of  the  wife."  '* 

This  rule  has  been  rendered  inapplicable  to  some  extent  by  the  stat- 
utes giving  married  women  a  power  to  contract.''" 

Effect  of  Modern  Statutes. 

The  common-law  disabilities  of  a  married  woman,  and  the  liabil- 
ity of  her  husband  for  her  torts,  remain  at  this  time,  both  in  Eng- 
land and  in  this  country,  except  in  so  far  as  they  have  been  modified 
by  statute.  Modern  statutes  have  been  enacted,  both  in  England  and 
in  this  country,  removing,  to  a  greater  or  less  extent,  the  disabilities 
of  married  women;  taking  away  from  the  husband  rights  which  he 
had  at  common  law,  and  either  expressly  or  by  implication  relieving 
him  from  liabilities  imposed  upon  him  by  the  common  law  by  reason 
of  the  marriage.  Even  if  these  statutes  do  not  expressly  refer  to  the 
husband's  liability  for  the  torts  of  his  wife,  it  is  very  obvious  that  they 
must  modify  it  to  some  extent.  If  the  liability  is  based  on  the  right 
of  the  husband  to  control  the  conduct  of  his  wife,  then  to  take  away 
this  right  would  seem  clearly  to  take  away  the  liability,  on  the  prin- 
ciple, "Cessante  ratione,  cessat  ipsa  lex."     If  the  liability  is  based  on 


Sedgwick,  97  U.  S.  304,  24  L.  Ed.  954 ;  Rowing  v.  Manly,  49  N.  T.  192,  10  Am. 
Rep.  346;  Ferguson  v.  Neilson,  17  R.  I.  81,  20  Atl.  229,  9  L.  R.  A.  155,  33  Am. 
St.  Rep.  855 ;  Keen  v.  Hartmau,  48  Pa.  497,  86  Am.  Dec.  606,  88  Am.  Dec.  472 ; 
Owens  V.  Snodgrass,  6  Dana  (Ky.)  229;  Curd  v.  Dodds,  6  Bush  (Ky.)  681. 
For  the  same  principle  as  applied  to  infants,  see  Jennings  v.  Rundall,  8 
Term  R.  335;  Clark,  Cont.  260;  post,  p.  431. 

TT  Ferguson  v.  Neilson,  17  R.  I.  81,  20  Atl.  229,  9  L.  R.  A.  155,  33  Am.  St 
Rep.  855.  But  see  Schmidt  v.  Keehn,  57  Hun,  585,  10  N.  Y.  Supp.  267,  where 
a  married  woman  was  held  liable  for  the  negligence  of  her  agent  in  making 
Improvements  on  her  separate  property,  and  Flesh  v.  Lindsay,  115  Mo.  1,  21  S. 
W.  907,  37  Am.  St.  Rep.  374,  where  a  distinction  is  drawn  between  the  terms 
"agent"  and  "servant,"  and  it  is  said  that,  though  a  married  woman  may  not 
have  an  agent,  in  regard  to  her  fee-simple  property,  she  may  have  a  sen'ant, 
and  be  liable  for  his  acts  in  relation  to  the  property. 

7  8  Woodward  v.  Barnes,  46  Vt.  332,  14  Am.  Rep.  026. 

7  0  See  Dobbin  v.  Cordiner,  41  Minn.  165,  42  N.  W.  870,  4  U  R.  A.  333,  16 
Am.  St.  Rep.  683. 


70  RIGHTS   AND   DUTIES   INCIDENT  TO   COVERTURE.  (Ch.  2 

the  fact  that  the  wife  cannot  be  sued  without  joining  her  husband,  it 
would  seem  to  cease  when,  by  statute,  a  married  woman  is  allowed  to 
sue  and  be  sued  as  a  feme  sole.  If  the  liability  is  based  on  the  hus- 
band's rights  in  the  property  of  his  wife,  then  the  liability  ought  not 
to  exist  when  these  rights  are  taken  away  from  him.  This  is  only 
reasonable  and  just.*° 

The  statutes  commonly  known  as  the  "Married  Women's  Acts" 
vary  so  much  in  the  different  states,  and  the  judges  have  differed  so 
widely  in  their  opinions  as  to  their  effect,  that  no  universal  statement 
as  to  a  husband's  liability  for  his  wife's  torts  can  be  made.  The  read- 
er must  consult  the  statutes  and  decisions  of  his  state.  In  many  of 
the  states  the  courts  have  been  very  conservative — perhaps  too  much 
so — in  adopting  innovations  in  the  common-law  doctrine.  They  re- 
quire that  the  intention  of  the  Legislature  to  make  such  changes  must 
be  clearly  and  unambiguously  expressed.  Even  where,  by  statute,  a 
wife's  separate  estate  is  liable  for  her  torts,  it  has  been  held  that  her 
husband's  joint  liability  for  her  personal  torts  still  remains.  In  New 
York  and  a  number  of  other  states,  for  instance,  a  husband  is  still  lia- 
ble as  at  common  law  for  slanderous  words  spoken  by  his  wife,  though 
spoken  in  his  absence,  and  though  he  in  no  manner  participated  there- 
in ;  and  the  same  is  true  of  assault  and  battery,  or  any  other  personal 
tort.^^  The  decision  in  all  of  these  cases  proceeds  upon  the  ground 
that  statutes  changing  the  common  law  are  to  be  strictly  construed, 
and  the  latter  will  be  held  to  be  no  further  abrogated  than  the  clear 
import  of  the  language  used  in  the  statutes  absolutely  requires,  and 
hence  that  the  common-law  disabilities  and  liabilities  incident  to  the  re- 


8  0  Martin  v.  Robson,  65  111.  129,  16  Am.  Rep.  578.  See,  also,  Scliuler  v. 
Henry,  42  Colo.  307,  94  Pac.  300.  14  L.  R.  A.  (N.  S.)  1009,  where  it  was  said 
that  a  statute  which  vests  a  married  woman  with  the  absolute  dominion  over 
her  property  and  person,  and  which  authorizes  her  to  sue  and  be  sued  as  if 
sole,  etc.,  impliedly  repeals  the  rule  of  the  common  law  which  makes  a  hus- 
band liable  for  the  torts  of  his  wife  committed  during  coverture,  without  his 
presence,  and  in  which  he  in  no  manner  participated. 

81  Rowing  V.  Mauley,  57  Barb.  (N.  Y.)  479;  15aum  v.  Mullen,  47  N.  T.  577; 
Mangam  v.  Peck,  111  N.  Y.  401,  18  N.  E.  617;  Fitzgerald  v.  Quann,  33  IIuu, 
652;  Id.,  109  N.  Y.  441,  17  N.  E.  354;  Choen  v.  Porter,  66  Ind.  195;  Fowler  v. 
Chichester,  26  Ohio  St.  9;  Ferguson  v.  Brooks,  67  Me.  251;  McQueen  v. 
Fulgham,  27  Tex.  403;  Luse  v.  Oaks,  36  Iowa,  562;  McElfresh  v.  Kirkendall, 
Id.  224;  Quick  v.  Miller,  103  Pa.  67.  See,  also,  Kellar  v.  James  (W.  Va.)  59 
S.  E.  939,  14  L.  R.  A.  (N.  S.)  1003. 


§§    38-41)  TORTS    OF   MARRIED   WOMEN.  71 

lation  of  husband  and  wife  still  exist,  except  in  so  far  as  they  have  been 
swept  away  by  express  enactments. 

In  other  states  it  is  held  that  the  statutes  removing  the  disabilities 
of  a  married  woman  to  sue  and  to  be  sued,  and  taking  from  the  hus- 
band his  common-law  rights  in  her  property,  and  to  her  earnings,  im- 
pliedly remove  his  common-law  liability  for  her  torts  committed  in 
his  absence  and  without  his  participation,  even  though  the  tort  has  no 
connection  with  the  management  and  control  of  her  separate  property. 
It  is  held,  for  instance,  that  he  is  not  liable  for  slanderous  words  spok- 
en by  her  in  his  absence,  and  without  his  participation.^ ^  In  Illinois 
the  statutes  give  a  married  woman  the  sole  control  of  her  separate 
property  and  estate  acquired  in  good  faith  from  any  person  other 
than  her  husband,  and  the  right  to  her  own  earnings ;  and  it  has  been 
held  in  that  state  that  the  effect  of  these  statutes  is  to  remove  the  hus- 
band's liability  for  the  torts  of  his  wife,  if  he  is  not  present  when  they 
are  committed,  and  in  no  manner  participates  in  them.  The  court 
said  that  so  long  as  the  husband  was  entitled  to  the  property  of  the 
wife  and  to  her  industry,  so  long  as  he  had  the  power  to  direct  and 
control  her,  and  thus  prevent  her  from  the  commission  of  torts,  there 
was  some  reason  for  the  rule,  but,  as  the  reason  had  been  removed,  so 
also  should  the  rule.  A  "liability,"  it  was  said,  "which  has  for  its  con- 
sideration rights  conferred,  should  no  longer  exist,  when  the  consider- 
ation has  failed.  If  the  relations  of  husband  and  wife  have  been  so 
changed  as  to  deprive  him  of  all  right  to  her  property  and  to  the  con- 
trol of  her  person  and  her  time,  every  principle  of  right  would  be  vio- 
lated, to  hold  him  still  responsible  for  her  conduct.  If  she  is  emanci- 
pated, he  should  no  longer  be  enslaved."  *'  To  the  same  effect  are  the 
decisions  in  some  of  the  other  states.  These  decisions  all  proceed  on 
the  principle  of  the  common  law,  "Cessante  ratione,  cessat  ipsa  lex,"  ** 

82  Cases  hereafter  cited. 

83  Martin  v.  Robson,  G5  III.  120,  16  Am.  Rep.  578.  But  the  husband  wlII  be 
liable  if  under  similar  circumstances  he  would  be  liable  for  the  tort  of  an- 
other, as,  for  Instance,  on  the  theory  of  respondeat  superior.  Thus  in  Mc- 
Nemar  v.  Cohn,  115  111.  App.  31,  it  was  held  that  the  husband  was  liable 
where  the  wife,  acting  as  his  agent,  was  negligent  in  the  performance  of  her 
duties,  to  the  injury  of  a  third  person. 

84  Norris  v.  Corkill,  32  Kan.  409,  4  Pac.  862,  49  Am.  Rep.  489;  Berger  v. 
Jacobs,  21  Mich.  215;  Burt  v.  McBain,  29  Mich.  260;  Ricci  v.  Mueller,  41 
Mich.  214,  2  N.  W.  23;  Musselman  v.  Galligher,  32  Iowa,  383;  Pancoast  v. 
Burnell,  Id.  394;  Mewhirter  v.  Ilatten,  42  Iowa,  288,  20  Am.  Rep.  618;  Kuli- 
lence  v.  Vocht  (Pa.)  13  Atl..  198 ;   Vocht  v.  Kuklence,  119  Pa.  365,  13  Atl.  199. 


72  RIGHTS  AND  DUTIES  INCIDENT  TO   COVERTURE.  (Ch.  2 

Even  in  those  states  where,  as  in  New  York,  a  husband  is  still  held 
liable  as  at  common  law  for  the  personal  torts  of  his  wife,  like  slander, 
assault  and  battery,  etc.,  it  is  very  generally  held  that  his  liability  is 
(imited  to  torts  of  this  character,  and  does  not  extend  to  torts  commit- 
ted by  his  wife  in  the  management  and  control  of  her  separate  proper- 
ty, as  where  she  permits  a  nuisance  on  her  land,^'*  suffers  her  cattle 
to  stray  on  her  neighbor's  land,®"  commits  a  fraud  in  the  sale  of  her 
separate  property,®^  or  is  guilty  of  any  other  tortious  act  or  omission 
in  relation  to  her  separate  property.^®  If  the  wife  is  by  statute  capa- 
ble of  managing  and  controlling  her  separate  property,  so  as  to  be  thus 
liable  for  her  torts  committed  in  relation  thereto,  she  may  be  liable  for 
the  torts  of  her  husband  in  relation  thereto,  where  he  is  acting  as  her 
agent  under  authority  from  her.** 

Of  course,  the  husband  is  solely  liable  for  torts  committed  by  him- 
self alone  in  relation  to  his  wife's  separate  property,  and  if  he  partici- 
pates with  her  in  the  commission  of  any  tort  he  is  liable  as  a  joint  tort- 
feasor. The  fact,  for  instance,  that  the  property  on  which  a  man  lives 
with  his  wife  belongs  to  her  does  not  render  her  liable  as  a  keeper  and 
harborer  of  his  vicious  dogs,  but  the  liability  is  solely  on  him.®" 

The  statutes,  as  has  already  been  remarked,  vary  greatly  in  the  dif- 
ferent states.  In  some  states  they  are  not  nearly  so  broad  as  in  oth- 
ers, and  in  many  cases,  therefore,  apparently  conflicting  decisions  may 
be  reconciled.  In  some  states  it  is  expressly  declared  by  statute  that 
a  husband  shall  not  be  liable  for  the  torts  of  his  wife  unless  he  direct- 
ed them,  or  otherwise  participated  therein.®^ 

85  Fiske  V.  Bailey,  51  N.  Y.  150;  Quilty  v.  Battie,  135  N.  Y.  201,  32  N.  E. 
It,  17  L.  R.  A.  521. 

80  Rowe  V.  Smith,  45  N.  Y.  230. 

87  Baum  V.  Mullen,  47  N.  Y.  577. 

88  Ferguson  v.  Brooks,  67  Me.  251.  Keeping  on  her  premises  a  vicious  dog. 
Quilty  V.  Battie,  135  N.  Y.  201,  32  N.  E.  47,  17  L.  R.  A.  521.  Where  she  is 
guilty  of  a  conversion,  in  seizing  property  on  which  she  claims  a  lien,  the 
husband  not  interfering  in  any  way.  Peak  v.  Lemon,  1  Lans.  (N.  Y.)  295. 
But  see  Wheeler  &  Wilson  Mfg.  Co.  v.  Heil,  115  Pa.  487,  8  Atl.  616,  2  Am.  St 
Rep.  575. 

8  0  Ferguson  v.  Brooks,  67  Me.  251;  Rowe  v.  Smith,  45  N.  Y.  230;  Baum  v. 
Mullen,  47  N.  Y.  577;    Knappen  v.  Freeman,  47  Minn.  491,  50  N.  W.  533. 

8  0  Buudschuh  v.  Mayer,  81  Hun,  111,  30  N.  Y.  Supp.  622.  And  see  Strouse 
V.  Leipf,  101  Ala.  433,  14  South.  667,  23  U  R.  A.  622,  46  Am.  St.  Rep.  122; 
McLaughlin  v.  Kemp,  152  Mass.  7,  25  N.  E.  18. 

91  Story  V.  Downey,  62  Vt.  243,  20  Atl.  321;  Kuklence  v.  Vocht  (Pa.)  13 
Atl.  198 ;    Vocht  v.  Kuklence,  119  Pa.  305,  13  Atl.  199 ;    Strouse  v.  Leipf,  101 


§§    42-43)  TORTS   AS    BETWEEN    HUSBAND    AND   WIFE.  73 

The  married  women's  acts  do  not  change  the  rule  stated  on  a  preced- 
ing page,  that  a  woman  who  commits  a  tort  in  the  presence  of  her  hus- 
band is  presumed  to  have  acted  under  his  coercion,  and  is  not  liable 
therefor  unless  it  is  affirmatively  shown  that  she  did  not  act  under  co- 
ercion.   Prima  facie  the  husband  is  solely  liable.** 


TORTS   AS   BETW^EEN   HUSBAND   AND   WIFE. 

42.  Neither  spouse  is  liable  to  the  other,  either  during  coverture  or 

after  divorce,  for  wrong^ful  acts   committed  during   coverture. 

43.  The  husband  in  such  a  case  could  sue  third  persons  who  assist- 

ed his  wife,  but  the  wife  could  not  sue  third  persons  who  as- 
sisted her  husband. 

Since  the  unity  of  husband  and  wife  at  common  law  rendered  it  im- 
possible for  the  wife  to  sue  the  husband,  it  necessarily  followed  that 
she  could  not  sue  him  for  a  tort  committed  against  her;  as,  for  in- 
stance, for  slander,  or  for  an  assault  and  battery.**'  He  was  amena- 
ble, if  at  all,  to  the  criminal  law  only.  No  cause  of  action  arose  at 
all  in  favor  of  the  wife,  and  it  followed  that  she  could  not,  even  after 
a  divorce,  sue  him  for  a  tort  committed  during  coverture.  In  a  Maine 
case  ®*  it  was  sought  to  sustain  an  action  by  a  wife  against  her  hus- 
band, after  a  divorce,  for  an  assault  committed  upon  her  during  cover- 
ture, on  the  ground  that  coverture  merely  suspends  the  right  of  ac- 
tion, and  does  not  destroy  it,  but  it  was  held  that  this  contention  was 
unsound.  "The  error  in  the  proposition,"  said  the  court,  "is  the  sup- 
position that  a  cause  of  action,  or  a  right  of  action,  ever  exists  in  such 
a  case.  There  is  not  only  no  civil  remedy,  but  there  is  no  civil  right, 
during  coverture,  to  be  redressed  at  any  time.  There  is,  therefore, 
nothing  to  be  suspended.     Divorce  cannot  make  that  a  cause  of  ac- 


Ala.  433,  14  South.  669,  23  L.  R.  A.  622,  46  Am.  St.  Rep.  122;  Austin  v.  Cox, 
118  Mass.  58. 

8  2  Ante,  p.  60. 

93  1  Jag.  Torts,  463;  Abbott  v.  Abbott,  67  Me.  304,  24  Am.  Rep.  27;  Phillips 
V.  Barnet,  1  Q.  B.  Div.  436;  Freethy  v.  Freethy,  42  Barb.  (N.  Y.)  641 ;  Longen- 
dyke  v.  Longendyke,  44  Barb.  (N.  Y.)  360;  Peters  v.  Peters,  42  Iowa,  182; 
Main  v.  Main,  46  111.  App.  106;  Libby  v.  Berry,  74  Me.  286,  43  Am.  Rep.  589; 
Nickerson  v.  Nickerson,  65  Tex.  281 ;  Schultz  v.  Schultz,  89  N.  Y.  644 ;  Ku jek 
V.  Goldman,  9  ilise.  Hep.  34,  29  N.  Y.  Supp.  294 ;  Abbe  v.  Abbe,  22  App.  Div. 
483,  48  N.  Y.  Supp.  25. 

»*  Abbott  V.  Abbott,  67  Me.  304,  24  Am.  Rep.  27. 


74  RIGHTS   AND   DUTIES   INCIDENT  TO   COVERTURE.  (Ch.  2 

tion  which  was  not  a  cause  of  action  before  divorce.  The  legal  char- 
acter of  an  act  of  violence  by  husband  upon  wife,  and  of  the  conse- 
quences that  flow  from  it,  is  fixed  by  the  condition  of  the  parties  at 
the  time  the  act  is  done.  If  there  be  no  cause  of  action  at  the  time, 
there  never  can  be  any."  ^'^ 

Nor  can  a  woman,  either  before  or  after  divorce,  maintain  an  ac- 
tion against  persons  who  assisted  her  husband  to  commit  a  tort  against 
her,  like  assault  and  battery,  for  instance,  during  coverture.  Such 
an  action  could  only  be  maintained,  if  at  all,  during  coverture,  in  the 
name  of  both  the  husband  and  wife;  and,  as  he  could  not  maintain 
it,  no  cause  of  action  arises  in  her  favor.®' 

The  same  principle  will  prevent  an  action  by  a  husband,  either  dur- 
ing coverture  or  after  divorce,  against  his  wife,  for  her  wrongful 
acts  during  coverture.  It  would  not,  however,  prevent  the  husband 
from  suing  third  persons  who  assisted  the  wife,  and  he  could  bring 
such  an  action  during  coverture  as  well  as  after  a  divorce. 

In  a  few  states  the  common-law  rule  has  been  changed  by  statute 
so  that  a  wife  may  maintain  an  action  against  her  husband  for  a  tort, 
but  to  authorize  such  an  action  the  statute  must  be  clear.  Statutes 
giving  a  married  woman  the  power  to  acquire,  hold,  and  dispose  of 
property  free  from  the  control  of  her  husband  have  been  construed  as 
giving  a  married  woman  a  right  of  action  for  torts  committed  by  her 
husband  upon  her  separate  property,  as  trespass  or  conversion."  In 
i  some  of  the  cases,  however,  the  courts  have  denied  this  construction. 

It  was  said  by  the  Pennsylvania  court,  in  reference  to  a  separate  prop- 
erty act:   "As  the  only  object  of  the  act  was  to  afford  a  protection  to 
the  estates  of  married  women,  we  may  assume  that  it  was  not  intend- 
j  ed  that  she  should  so  fully  own  her  separate  property  as  to  impair  the 

S  intimacy  of  the  marriage  relation.    It  was  not  intended  to  declare  that 

her  property  should  be  so  separate  that  her  husband  could  be  guilty 
of  larceny  of  it,  or  liable  in  trespass  or  trover  for  breaking  a  dish  or  a 
chair,  or  using  it  without  her  consent."  ®* 

»5  See  Strom  v.  Strom,  98  Minn;  427,  107  N.  W.  1047,  6  L.  R.  A.  (N.  S.)  191, 
116  Am.  St.  Rep.  387.    And  see  Phillips  v.  Barnet,  1  Q.  B.  Div.  436. 

00  Abbott  V.  Abbott,  67  Me.  304,  24  Am.  Rep.  27. 

87  Mason  v.  Mason,  6G  Hun,  3S6,  21  N.  Y.  Supp.  30G ;  Ryerson  v.  Ryersou, 
55  Hun,  611,  8  N.  Y.  Supp.  738. 

98  Walker  v.  Reamy,  30  Pa.  410. 


§   44)  TORTS  AGAINST   MARRIED   WOMEN.  75 

TORTS   AGAINST   MARRIED   "WOMEN. 

44.   "WTieii   a  tort  is   committed   against   a  married  woman,    damages 
may  be  recovered. 

(a)  For  tlie  injury  to  the  wife— as  for  her  mental  and  physical  suf- 

fering. 

(1)  At  common  law  in  a  joint  action  by  husband  and  wife,  and 

only  in  such  an  action,  and  the  cause  of  action  abates  on 
the  death  of  the  w^ife. 

(2)  By  statute,  in  most  states,  by  the  wife  suing  alone. 

(b)  For  the  injury  to  the  husband — as  for  the  loss  of  the  wife's  so- 

ciety and  services,  and  for  his  disbursements — in  an  action  by 
the  husband  suing  alone,  at  common  la^v,  and  in  such  an  ac- 
tion only.  By  statute  in  some  states,  such  damages  can  be 
recovered  in  the  joint  action.  This  cause  of  action  does  not 
abate   on   the   wife's   death. 

When  a  tort  is  committed  against  a  married  woman,  two  actions 
may  lie — one  for  the  injury  to  the  wife  and  one  for  the  injury  to  the 
husband  by  reason  of  his  loss  of  her  services  and  society,  or  by  reason 
of  being  put  to  expense.®^ 

Injury  to  the  Wife — Joint  Action. 

At  common  law,  as  will  presently  be  explained  more  at  length,  mar- 
riage confers  upon  the  husband  an  absolute  right  to  all  of  his  wife's 
personal  property  in  possession,  and  to  her  choses  in  action  if  he  re- 
duces them  to  possession  during  coverture.^  Claims  of  the  wife  for 
damages  growing  out  of  torts  committed  by  third  persons  against  her 
person  or  character,  such  as  assault  and  battery,  negligent  personal 
injury,  libel,  slander,  etc.,  are  choses  in  action  within  this  rule.^  At 
common  law  an  action  for  such  injuries  must  be  brought  in  the  name 
of  the  husband  and  wife  jointly;  during  coverture  neither  can  sue 
alone.^     The  damages  recovered  in  such  an  action  are  for  the  injury 

99  Chicago  &  M.  Electric  Ry.  Co.  v.  Krempel,  IIG  111.  App.  253 ;    Mageau  v. 
Great  Northern  Ry.  Co.,  103  Miim.  290,  115  N.  W.  651,  946,  15  L.  R.  A.  (N.  S.) 
511 ;   Duffee  v.  Boston  Elevated  Ry.  Co.,  191  Mass.  563.  77  N.  E.  1036 ;   Thomp- 
son V.  Metropolitan  St.  Ry.  Co.,  135  Mo.  217,  36  S.  W.  025. 
■    1  Post,  pp.  92,  95. 

2  Anderson  v.  Anderson,  11  Bush  (Ky.)  327. 

3  Cooley,  Torts,  227 ;  Dengate  v.  Gardiner,  4  Mees.  &  W.  6 ;  Berger  v. 
Jacobs,  21  Mich,  215;  Michigan  Cent.  R.  Co.  v.  Coleman,  28  Mich.  441; 
Laughlin  v.  Eaton,  54  Me.  156;  Hooper  v.  Haskell,  56  Me.  251;  Saltmarsh 
V.  Candia,  51  N.  H.  71;  Harper  v.  Pinkston,  112  N.  C.  293,  17  S.  E.  161; 
Rogers  v.  Smith,  17  Ind.  323,  79  Am.  Dec.  4S3 ;    Smith  v.  City  of  St.  Joseph, 


76  RIGHTS   AND   DUTIES   INCIDENT   TO   COVERTURE.  (Ch.  2 

to  the  wife,  and  not  for  any  injury  to  the  husband;  but  they  belong 
to  the  husband,  when  recovered.*  For  this  reason  it  has  been  held 
that  he  may  release  or  compromise  the  claim.  If  the  husband  dies 
pending  the  action,  it  does  not  abate,  but  may  proceed  to  judgment  in 
the  name  of  the  wife  alone ;  and,  if  the  husband  dies  before  com- 
mencing an  action,  the  wife  may  enforce  the  claim  by  an  action  in  her 
own  name.''  On  the  death  of  the  wife  the  cause  of  action  ceases,  and 
the  husband  therefore  cannot  afterwards  commence  an  action  in  his 
own  name,  nor  continue  with  an  action  which  has  already  been  com- 
menced.* 

The  recovery  in  the  joint  action  is  confined  to  damages  for  the  in- 
jury to  the  wife,  such  as  her  mental  and  physical  suffering;  and  dam- 
ages to  the  husband,  as  the  expenses  of  medical  attendance,  loss  of 
wages,  services,  etc.,  in  the  case  of  personal  injuries  to  the  wife,  must 
be  recovered  by  the  husband  suing  alone.'' 

In  most  states  the  common-law  rules  with  regard  to  actions  for  torts 
against  married  women  have  been  modified  by  statute ;  and  it  is  very 
generally  provided  that  a  married  woman  may  sue  alone  for  injuries 
to  her  person  or  character,  and  recover  her  damages  for  her  own  ben- 
efit.*    In  some  states  the  statutes  only  allow  her  to  sue  in  her  own 


no  Mo.  456,  17  Am.  Rep.  660;  King  v.  Thompson,  87  Pa.  365.  30  Am.  Rep. 
3G4.  Refusal  of  the  husband  to  bring  the  action  does  not  entitle  the  wife  to 
sue  alone.     Rice  v.  Railroad  Ck).,  8  Tex.  Civ.  App.  130,  27  S.  W.  921. 

4  Dengate  v.  Gardiner,  4  Mees.  &  W.  6 ;  Meese  v.  City  of  Fond  du  Lac, 
48  Wis.  323,  4  N.  W.  406. 

6  Newton  v.  Hatter,  2  Ld.  Raym.  1208 ;    Schouler,  Dom.  Rel.  §  77. 

«  Bac.  Abr.,  "Baron  and  Feme,"  k,  60;  Meese  v.  City  of  Fond  du  Lac,  48 
Wis.  323,  4  N.  W.  406 ;  Purple  v.  Railroad  Co.,  4  Duer  (N.  Y.)  74 ;  Hodgman 
V.  Railroad  Corp.,  7  How.  Prac.  (N.  Y.)  492;  Butler  v.  Railroad  Co.,  22  Barb. 
(X.  Y.)  110 ;    Meech  v.  Stoner,  19  N.  Y.  26. 

7  Dengate  v.  Gardiner,  4  Mees.  &  W.  6;  Meese  v.  City  of  Fond  du  Lac,  48 
Wis.  323,  4  N.  W.  406.  But  by  statute  in  some  states  all  damages  may  be 
recovered  in  the  one  action.    See  post,  p.  78. 

8  Stevenson  v.  Morris,  37  Ohio  St.  10,  41  Am.  Rep.  481 ;  Hey  v.  Prime,  197 
Mass.  474,  84  N.  E.  141 ;  McGovern  v.  Interurban  Ry.  Co.,  136  Iowa,  13,  111  N. 
W.  412,  13  L.  R.  A.  (N.  S.)  476 ;  Engle  v.  Simmons,  148  Ala.  92,  41  South.  102:^, 
7  D.  R.  A.  (N.  S.)  96,  121  Am.  St  Rep.  59;  Times-Democrat  Pub.  Co.  v.  Mozee, 
136  Fed.  761,  69  C.  C.  A.  418 ;  Matthew  v.  Railroad  Co.,  63  Gal.  450 ;  Michigan 
Cent.  R.  Co.  v.  Coleman,  28  Mich.  440;  City  of  Bloomington  v.  Annett,  16  111. 
App.  199;  Chicago,  B.  &  Q.  R.  Co.  v.  Dunn,  52  111.  260,  4  Am.  Rep.  606; 
Hennies  v.  Vogel,  66  111.  401;  Pavlovski  v.  Thornton.  89  Ga.  829,  15  S.  E. 
822;    Fife  v.  City  of  Oshkosh,  89  Wis.  540,  62  N.  W.  541;    City  of  CSiadroD 


§  44)  TORTS  AGAINST   MARRIED  WOMEN.  77 

name  in  relation  to  her  separate  property.  She  can,  under  these  stat- 
utes, sue  for  a  trespass  upon,  or  a  conversion  of,  her  separate  prop- 
erty; but  for  injuries  to  her  person  or  character  she  can  only  sue 
jointly,  as  at  common  law.® 

Injury  to  Husband — Action  by  Husband  Alone. 

In  addition  to  this  joint  action  for  torts  committed  against  his  wife, 
the  husband  may  sue  alone,  "per  quod  consortium  amisit,"  as  it  is  ex- 
pressed, for  injuries  to  her  which  render  her  less  able  to  perform  serv- 
ices. In  such  an  action  he  can  recover  his  own  damages,  and  such 
damages  only — as,  in  case  of  personal  injuries,  for  the  loss  of  her  so- 
ciety and  services,  moneys  necessarily  expended  by  him  for  care  and 
attendance,  and  other  incidental  expenses. 


10 


V.  Glover,  43  Neb.  732.  62  N.  W.  62;  Barnett  v.  Leonard,  66  Ind.  422.  The 
statute  is  not  retroactive,  so  as  to  affect  a  right  of  action  which  had  become 
vested  in  the  husband  prior  to  Its  passage.  St.  Louis  Southwestern  Ry.  Co. 
V.  Purceil,  135  Fed.  499,  68  C.  C.  A.  211.  In  some  states  the  wife  must  sue 
alone  under  the  statute.  Michigan  Cent.  R.  Co.  v.  Coleman,  supra;  Story 
V.  Downey,  62  Vt.  243,  20  Atl.  321;  Foot  v.  Card,  58  Conn.  1,  18  Atl.  1027, 
6  L.  R.  A.  829,  18  Am.  St.  Rep.  258;  Bennett  v.  Bennett,  116  N.  Y.  584,  23 
N.  E.  17,  6  L.  R.  A.  553.  In  others  the  statute  does  not  prevent,  but  merely 
renders  unnecessary,  the  joinder  of  the  husband.  East  Tennessee,  V.  &  G.  R. 
Co.  V.  Cox,  57  Ga.  252;  Normile  v.  Wheeling  Traction  Co.,  57  W.  Va.  132, 
49  S.  E.  1030,  68  L.  R.  A.  901.  The  wife  may  also  recover  medical  expenses 
paid  or  contracted  for  by  her  in  consequence  of  the  injury,  though  her 
husband  is  ordinarily  chargeable  therefor.  Ashby  v.  Elsberry  &  N.  H.  Gravel 
Road  Co.,  Ill  Mo.  App.  79,  85  S.  W.  957;  Indianapolis  Traction  &  Terminal 
Co.  V.  Kidd,  167  Ind.  402,  79  N.  E.  347,  7  L.  R.  A.  (N.  S.)  143. 

»  Lamb  v.  Harbaugh,  105  Cal.  680,  39  Pac.  56 ;  Lindsay  v.  Oregon  Short 
Line  R.  Co.,  13  Idaho,  477,  90  Pac.  984,  2  L.  R.  A.  (N.  S.)  184.  But  see  Dun- 
can v.  Duncan,  6  Cal.  App.  404,  92  Pac.  310,  holding  that  a  married  woman 
deserted  by  her  husband  may  sue  alone  to  recover  damages  for  her  personal 
injuries,  although  such  damages  when  recovered  are  community  property. 
And  compare  Schmelzer  v.  Chester  Traction  Co.,  218  I'a.  HO,  60  Atl.  1005. 

103  BI.  Comm.  140;  Moore  v.  Bullock,  Cro.  Jac.  501;  Cooley,  Torts,  226; 
1  Jag.  Torts,  469;  Hyatt  v.  Adams,  16  Mich.  180;  Hey  v.  Prime,  197  Mass. 
474,  84  N.  E.  141;  Duffee  v.  Boston  Elevated  Ry.  Co.,  191  Mass.  503,  77  N. 
E.  1036;  Birmingham  Southern  Ry.  Co.  v.  Lintner,  141  Ala.  420,  38  South. 
3(33,  109  Am.  St.  Rep.  40 ;  Booth  v.  Manchester  St.  Ry.,  73  N.  H.  529,  63  Atl. 
578;  Lyons  v.  New  York  City  Ry.  Co.,  49  Misc.  Rep.  517,  97  N.  Y.  Supp. 
1033 ;  Wright  v.'  City  of  Omaha  (Neb.)  110  N.  W.  754 ;  Berger  v.  Jacobs,  21 
Mich.  215;  Mewhirter  v.  Hatten,  42  Iowa,  288,  20  Am.  Rep.  618;  Matteson 
V.  Railroad  Co.,  35  N.  Y.  487,  91  Am.  Dec.  67;  Hoard  v.  Peck,  56  Barb. 
(N.  Y.)  202;   Rogers  v.  Smith,  17  Ind.  323,  79  Am.  Dec.  483;   Smith  v.  City  of 


78  RIGHTS   AND  DUTIES  INCIDENT  TO   COVERTtmB.  (Ch.  2 

The  loss  of  services  is  not  to  be  measured  as  if  she  were  a  mere 
servant;  but  the  frugality,  industry,  usefulness,  and  attention  of  the 
wife  and  mother  are  elements  to  be  taken  into  consideration.^^  So, 
too,  the  damages  that  may  be  recovered  are  not  confined  to  the  value 
of  her  services  in  the  household,  but  may  include  the  value  of  her 
services  rendered  in  her  husband's  business  ;^^  and  if  the  injuries  are 
permanent  the  damages  may  include  a  fair  compensation  for  her  future 
diminished  capacity.^^  He  cannot,  in  such  an  action,  recover  for  the 
mental  or  physical  suffering  of  his  wife.^*  Damages  for  injuries  per- 
sonal to  the  wife  must  be  recovered  in  the  joint  action,  and  damages 
for  injuries  to  the  husband  must  be  recovered  in  an  action  by  the  hus- 
band alone.^*     In  some  states  this  has  been  changed  by  statute,  and 


St.  Joseph,  55  Mo.  456,  17  Am.  Rep.  660;  King  v.  Thompson,  87  Pa.  365,  30 
Am.  Rep.  364 ;  Barnes  v.  Martin,  15  Wis.  240,  82  Am.  Dec.  670.  Thus  an  ac- 
tion may  be  maintained  by  the  husband  per  quod  consortium  amisit,  under 
this  rule,  for  the  following  injuries,  among  others,  against  the  wife:  Assault 
and  battery.  Berger  v.  Jacobs,  21  Mich.  215.  Sale  to  her  of  a  drug  like 
laudanum,  opium,  or  morphine,  which  the  seller  knows  she  is  in  the  habit 
of  using  to  excess.  Hoard  v.  Peck,  56  Barb.  (N.  Y.)  292.  Malpractice  by 
physician  or  surgeon.  Hyatt  v.  Adams,  16  Mich.  180;  Mewhirter  v.  Hatten, 
42  Iowa,  288,  20  Am.  Rep.  618;  Mowry  v.  Chaney,  43  Iowa,  609.  Negligence 
resulting  In  personal  injuries.  Matteson  v.  Railroad  Co.,  35  N.  Y.  487,  91 
Am.  Dec.  67 ;  Smith  v.  City  of  St.  Joseph,  55  Mo.  456,  17  Am.  Rep.  660 ;  Hop- 
kins V.  Railroad  Co.,  36  N.  H.  9,  72  Am.  Dec.  287 ;  Fuller  v.  Railroad  Co.,  21 
Conn.  557.  Libel  or  slander  of  wife,  where  there  is  a  loss  of  services  or 
society  to  the  husband,  as  where  she  is  prevented  from  obtaining  employ- 
ment, the  wages  of  which  would  go  to  the  husband.  Dengate  v.  Gardiner, 
4  Mees.  &  W.  6.  And  see  Van  Vacter  v.  McKillip,  7  Blackf.  (Ind.)  578.  Mali- 
cious prosecution.     Rogers  v.  Smith,  17  Ind.  323,  79  Am.  Dec.  483. 

11  Pennsylvania  R.  Co.  v.  Goodman,  62  Pa.  329.  As  to  the  measure  of  dam- 
ages generally,  see  note,  48  Am.  Dec.  620,  021. 

12  Georgia  R.  &  Banking  Co.  v.  Tice,  124  Ga.  459,  52  S.  E.  916;  Standen  v. 
Pennsylvania  R.  Co.,  214  Pa.  189,  63  Atl.  467;  Citizens'  St.  Ry.  Co.  v.  Twin- 
ame,  121  Ind.  375,  23  N.  E.  159,  7  L,.  R.  A.  352;  Blair  v.  Chicago  &  A.  R. 
Co.,  80  Mo.  334,  1  S.  W.  367.  But  see  Kirkpatriek  v.  Metropolitan  St.  Ry. 
Co.,  129  Mo.  App.  524,  107  S.  W.  1025. 

IS  Kimberley  v.  Ilowiand,  143  N.  C.  398,  55  S.  E.  778,  7  L.  R.  A.  (N.  S.) 
545;  Kirkpatriek  v.  Metropolitan  St.  Ry.  Co.,  129  Mo.  App.  524,  107  S.  W. 
1025. 

14  Hooper  v.  Haskell,  56  Me.  251;  Hyatt  v.  Adams,  16  Mich.  180;  Chicago 
&  M.  Electric  Ry.  Co.  v.  Krempel,  116  111.  App.  253. 

15  See  the  cases  cited  above.  And  see,  particularly,  Dengate  v.  Gardiner,  4 
Mees.  &  W.  6 ;   Fuller  v.  Naugatuck  R.  Co.,  21  Conu.  557 ;   Barnes  v.  Martin, 


§§   45-4:6)      ENTICING,  ETC.,  OR   ALIENATION    OF   AFFECTION.  79 

all  damages,  whether  to  the  wife  or  to  the  husband,  may  be  recover- 
ed in  a  joint  action.^*  The  death  of  the  wife  either  before  or  during 
an  action  by  the  husband  for  his  damages  for  loss  of  services,  expenses, 
etc.,  will  not  defeat  the  action. 

In  case  of  injuries  resulting  in  his  wife's  death,  the  husband  can- 
not recover  at  common  law  for  the  loss  of  society  or  services  result- 
ing from  her  death,  but  only  for  the  loss  between  the  injuries  and  her 
death.^^  Under  the  statutes,  however,  giving  a  right  of  action,  where 
a  death  is  caused  by  the  wrongful  act  of  another,  the  husband,  when 
a  beneficiary  under  the  statute,  may  recover  for  the  loss  of  services  re- 
sulting from  his  wife's  death.^* 


ACTIONS  FOR  ENTICING,  HARBORING,  OR  ALIENATION  OF  AF- 
FECTION. 

45.  A  hnsliaiid  has   a  right   of   action   for  damages   against   any   one 

wlio  entices  axvay  or  harbors  his  wife,  or  'nrho  alienates  her 
affections,   though   there   is  no   enticing  a\(ray. 

EXCEPTIONS— (a)  A  person  who  harbors  a  wife,  not  from  improper 
motives,  but  from  motives  of  humanity,  as  xrhere  she  has  been 
forced  to  leave  her  husband  from  fear  of  bodily  harm,  is  not 
liable. 

(b)  Parents  are  not  liable  for  advising  a  daughter  to  leave  her  hus- 
band, or  for  harboring  her,  w^here  they  act  from  proper  mo- 
tives; and,  in  this  class  of  cases,  proper  motives  will  be  pre- 
sumed until  the  contrary  appears.  The  same  rule  has  been 
applied  to  the  case  of  parent  and  son. 

46.  In  most,  but  not  all,  jurisdictions,  a  \irife  has  a  right  of  action 

against  one  \Fho  entices  aw^ay,  or  alienates  the  affections  of, 
her  husband;  at  least,  w^here  her  disability  to  sue  alone  has 
been  renxoved  by  statute.  According  to  the  Tireight  of  opinion, 
the  right  exists  even  at  common  law. 


15  Wis.  240,  82  Am.  Dec.  670 ;  Kavanaugh  v.  City  of  Janesville,  24  Wis.  CIS ; 
King  V.  Thompson,  87  Pa.  305,  30  Am.  Rep.  3G4. 

isMeese  v.  City  of  Foud  du  Lac,  48  Wis.  323,  4  N.  W.  40G ;  Standeu  v. 
Pennsylvania  R.  Co.,  214  Pa.  189.  G3  Atl.  4G7. 

17  Baker  v.  Bolton,  1  Camp.  493;  Green  v.  Railroad  Co.,  28  Barb.  (N.  Y.) 
9;  Hyatt  v.  Adams,  10  Mich.  180;  Long  v.  Morrison,  14  Ind.  595,  77  Am. 
Dec.  72 ;    Nixon  v.  Ludlam,  50  111.  App.  273. 

18  Railway  Co.  v.  "^Tiittou's  Adm'r,  13  Wall.  270,  20  L.  Ed.  571;  Pennsyl- 
vania R.  Co.  V.  Goodman,  62  Pa.  329;  Delaware,  L.  &  W.  R.  Co.  v.  Jones,  128 
Pa.  308,  18  Atl.  330. 


80  RIGHTS  AND  DUTIES  INCIDENT  TO  COVERTURE.  (Ch.  2 

Action  by  Husband. 

Since  a  husband  is  entitled  to  his  wife's  society  and  services,  he 
has  a  right  of  action  against  one  who  alienates  her  affections  from 
him,  or  who  deprives  him  of  her  society  and  services  by  enticing  her 
to  leave  him,  or  by  harboring  her.^®  It  is  not  necessary  to  the  hus- 
band's cause  of  action  that  the  wife  shall  have  been  enticed  away  from 
him.  An  action  will  lie  for  alienation  of-  her  affections,  although  she 
has  not  left  his  house,  and  he  has  suffered  no  pecuniary  loss.  "It  is 
perhaps  true  that  the  theory  of  such  an  action  was  originally  the  loss 
of  services,  for  it  was  presumed  that  by  the  seduction  or  alienation 
the  wife's  services  were  rendered  less  valuable.  But  whatever  may 
have  been  the  principle,  originally,  upon  which  this  class  of  actions 
was  maintained,  it  is  certain  that  the  weight  of  modern  authority  bas- 
es the  action  on  the  loss  of  the  consortium;  that  is,  the  society,  com- 
panionship, conjugal  affections,  fellowship,  and  assistance.  The  suit 
is  not  regarded  in  the  nature  of  an  action  by  a  master  for  the  loss  of 
the  services  of  his  servant,  and  it  is  not  necessary  that  there  should 
be  any  pecuniary  loss  whatever."  ^° 

The  husband's  right  of  action  in  this  class  of  cases  is  not  defeat- 
ed by  showing  that  he  and  his  wife  did  not  live  happily  together.  But 
if,  on  account  of  their  unhappy  relations,  the  wife's  comfort  and  so- 
ciety are  of  less  moment  to  the  husband,  the  state  of  their  relations 
may  be  shown  in  mitigation  of  damages.^ ^     Such  evidence,  however, 

i»l  Jag.  Torts,  466;  Winsmore  v.  Greenbank,  Willes,  577;  Smith  v.  Kaye, 
20  Times  Law  R.  261;  Hutcheson  v.  Pecli,  5  Jolins.  (N.  Y.)  196;  Rineliart 
V.  Bills,  82  Mo.  534,  52  Am.  Rep.  885 ;  Modisott  v.  McPike,  74  Mo.  636 ;  Had- 
ley  V.  Hey  wood.  121  Mass.  236 ;  Gilchrist  v.  Bale,  8  Watts  (Pa.)  355,  34  Am. 
Dec.  469;  Barbae  v.  Armstead,  32  N.  C.  530,  51  Am.  Dec.  404;  Higham  v. 
Vanosdol,  101  lud.  161 ;  Rudd  v.  Rounds,  64  Vt.  432,  25  Atl.  438;  Tasker  v. 
Stauley,  153  Mass,  148,  26  N.  E.  417,  10  L.  R.  A.  468;  Heermance  v.  James, 
47  Barb.  (N.  Y.)  120;  Huot  v.  Wise,  27  Miun.  68,  6  N.  W.  425;  Fratiui  v. 
Caslini,  66  Vt  273,  20  AU.  252,  44  Am.  St.  Rep.  843. 

20  Adams  v.  Main,  3  Ind.  App.  232,  29  N.  E.  792,  50  Am.  St  Rep.  206; 
Dodge  V.  Rush,  28  App.  D.  C.  149;  Heermance  v.  James,  47  Barb.  (N.  Y.) 
120;  Rinehart  v.  Bills,  82  Mo.  534,  52  Am.  Rep.  385;  Bigaouette  v.  Paulet 
134  Mass.  123,  45  Am.  Rep.  307;  Sikes  v.  Tippins,  85  Ga.  231,  11  S.  E.  002; 
Bennett  v.  Bennett,  116  N.  Y.  584,  23  N.  E.  17,  6  L.  R.  A.  553. 

21  \N'illis  V.  Bernard,  8  Bing.  376;  Morris  v.  Warwick,  42  Wash.  480,  85 
Pac.  42;  Humphrey  v.  Poke,  1  Cal.  App.  374,  82  Pac.  223;  Palmer  v.  Crook, 
7  Gray  (Mass.)  418;  Hadley  v.  Hey  wood,  121  Mass.  236;  Iloltz  v.  Dick,  42 
Ohio  St.  23,  51  Am.  Rep.  791 ;  Gilchrist  v.  Bale,  8  Watts  (Pa.)  355,  34  Am. 
Dec.  469;  Bailey  v.  Bailey,  94  Iowa,  598,  63  N.  W.  341. 


§§    45-46)      ENTICING,  ETC.,  OR   ALIENATION    OF   AFFECTION.  81 

must  be  confined  to  the  time  prior  to  her  relations  with  the  defend- 
ant." 

In  these  cases,  whether  there  was  mahce  or  an  improper  motive 
is  always  a  material  consideration.  Thus,  where  a  woman  is  forced 
to  leave  her  husband  from  fear  of  bodily  harm,  or  other  sufficient 
cause,  no  action  will  lie  against  one  who  receives  her  from  motives 
of  humanity."  The  grounds  that  will  be  sufficient  to  justify  a  stran- 
ger in  interfering,  and  harboring  another's  wife,  must  be  extreme.  For 
instance,  it  has  been  held  that  ill  treatment,  in  order  to  justify  a  per- 
son, not  a  near  relative,  in  harboring  another's  wife  to  secure  her  from 
such  treatment  by  her  husband,  must  be  of  so  cruel  a  character  as  to 
endanger  her  personal  safety,  and  to  force  her  to  remain  away  from 
her  husband,  and  the  burden  of  proving  that  it  is  so  is  on  such  party.^* 

The  question  of  motive  most  frequently  arises  in  cases  where  a 
parent  induces  a  daughter  to  leave  her  husband,  or  harbors  her  after 
she  has  left  him.  The  rule  is  that,  in  the  absence  of  improper  mo- 
tives, the  parent  is  not  liable  to  the  husband.  And  stronger  proof  is 
necessary  as  against  a  parent  than  as  against  a  stranger.  Mr.  Schouler 
states  the  legal  doctrine  to  be  "that  honest  motives  may  shield  a  par- 
ent from  the  consequences  of  indiscretion,  while  adding  nothing  to  the 
right  of  actual  control — the  intent  with  which  the  parent  acted  being 
the  material  point,  rather  than  the  justice  of  the  interference;  that  a 
husband  forfeits  his  right  to  sue  others  for  enticement,  where  his  own 
misconduct  justified  and  actually  caused  the  separation;  but  that  other- 

22  Fratini  v.  Caslini,  66  Vt.  273,  29  Atl.  252,  44  Am.  St.  Rep.  843. 

23Philp  V.  Squire,  1  Peake,  82;  Berthon  v.  Cartwright,  2  Esp.  480;  John- 
son V.  Allen,  100  N.  C.  131,  5  S.  E.  6G6 ;  Bennett  v.  Smith,  21  Barb.  (N.  T.) 
439;  Barnes  v.  Allen,  30  Barb.  (N.  Y.)  663;  Tasker  v.  Stanley,  153  Mass. 
148,  26  N.  E.  417,  10  L.  R.  A.  468;  Turner  v.  Estes,  3  Mass.  317.  And  see 
Modisett  v.  McPike,  74  Mo.  636.  One  allowing  his  wife's  mother  to  remain 
in  his  house  against  her  husband's  wishes  is  not  liable  to  the  husband  on 
account  of  the  mere  failure  to  expel  her,  where  there  is  no  concealment,  de- 
nial of  free  access,  or  attempt  to  influence  her  to  remain.  Turner  v.  Estes, 
3  Mass.  317. 

2  4  Johnson  v.  Allen,  100  N.  C.  131,  5  S.  E.  666.  See,  also,  Smith  v.  Kaye, 
20  Times  Law  R.  261,  where  it  is  said  that  in  an  action  for  enticing  the  ques- 
tions the  jury  have  to  consider  are  whether  the  defendant  persuaded,  induc- 
ed, or  incited  the  wife  to  leave,  or  procured  her  leaving,  and  whether  in 
consequence  thereof  she  did  leave.  If  the  wife  merely  asked  the  defendant 
for  advice,  and  the  defendant  merely  approved  of  her  leaving,  the  defendant 
will  not  be  liable  if  such  advice  was  given  in  good  faith ;  it  might  be  differ- 
ent if  the  advice  was  volunteered. 
TIFF.P.&  D.Rel.(2d  Ed.)— 6 


82  RIGHTS  AND   DUTIES  INCIDENT  TO  COVBRTURB.  (Ch.  2 

wise  his  remedy  is  complete  against  all  persons  whomsoever  who  have 
lent  their  countenance  to  any  scheme  for  breaking  up  his  household."  ^' 
In  the  case  of  a  father  harboring  his  daughter,  Chancellor  Kent  held 
that  stronger  proof  is  necessary  against  a  father  than  against  a  stran- 
ger, and  that  it  ought  to  appear  either  that  he  detains  the  wife  against 
her  will,  or  that  he  enticed  her  away  from  her  husband  from  improp- 
er motives.^"  "A  father's  house,"  he  said,  "is  always  open  to  his 
children.  Whether  they  be  married  or  unmarried,  it  is  still  to  them  a 
refuge  from  evil,  and  a  consolation  in  distress.  Natural  affection  es- 
tablishes and  consecrates  this  asylum." 

The  rule,  therefore,  is  well  settled  that  a  husband  cannot  maintain 
an  action  against  his  wife's  parents  for  enticing  her  away  from  him, 
or  for  harboring  her,  unless  it  is  both  alleged  and  proved  that  they 
acted  from  improper  motives. ^^  As  was  said  by  the  Tennessee  court: 
"There  can  be  no  law  to  restrain  the  parent  from  honestly  and  sincere- 
ly endeavoring  to  protect  his  daughter,  by  means  of  counsel  and  warn- 
ing, from  impending  ruin  or  disgrace,  or  wreck  of  her  happiness  or 
usefulness  for  life.  There  is  a  marked  distinction  between  the  rights 
and  privileges  of  a  parent,  in  such  cases,  and  those  of  a  mere  inter- 
meddling stranger.  A  father  has  no  right  to  restrain  his  daughter 
from  returning  to  her  husband,  if  she  desires  to  do  so.  On  the  other 
hand,  he  may  lawfully  give  counsel  and  honest  advice  for  her  own 
good,  and  shelter  her  in  his  own  house,  if  she  chooses  to  remain  with 
him."  " 

2  0  Schouler,  Husb.  &  W.  §  64. 

2  6  Hutcheson  v.  Peck,  5  Johns.  (N.  Y.)  196. 

2  7  Reed  V.  Reed,  6  Ind.  App.  317,  33  N.  E.  638.  51  Am.  St.  Rep.  310;  Pow- 
ell V.  Benthall,  136  N.  C.  145,  48  S.  E.  598;  Miller  v.  Miller,  122  Mo.  App. 
693,  99  S.  W.  757;  Multer  v.  Knibbs,  193  Mass.  556,  79  N.  E.  762,  9  L.  R. 
A.  (N.  S.)  322;  Payne  v.  Williams,  4  Baxt.  (Tenn.)  585;  Glass  v.  Bennett,  89 
Tenn.  478,  14  S.  W.  1085;  Hutcheson  v.  Peck,  5  Johns.  (N.  Y.)  190;  Rabe 
V.  Hanna,  5  Ohio,  530;  Huling  v.  Ruling,  32  111.  App.  519;  Bennett  v.  Smith, 
21  Barb.  (N.  Y.)  439;  Burnett  v.  Burkhead,  21  Ark.  77,  76  Am.  Dec.  358; 
Holtz  V.  Dick,  42  Ohio  St.  23,  51  Am.  Rep.  791;  Turner  v,  Estes,  3  Mass. 
317;  Friend  v.  Thompson,  Wright  (Ohio)  636;  Westlake  v.  Westlake,  34  Ohio 
St.  621,  32  Am.  Rep.  397;  Smith  v.  Lyke,  13  Hun,  204;  White  y.  Ross, 
47  Mich.  172,  10  N.  W.  189. 

28  Payne  v,  Williams,  4  Baxt.  (Tenn.)  585.  To  the  same  effect,  see  Mul- 
ter v.  Knibbs,  193  Mass.  556,  79  N.  E.  762,  9  L.  R.  A.  (N.  S)  322,  and  Barton 
V.  Barton,  119  Mo.  App.  507,  94  S.  W.  574.  In  the  last  case  it  was  said  that 
circumstances  will  excuse  a  parent  for  advising  a  son  regarding  his  do- 
mestic affairs  and  influencing  a  separation  from  his  wife,  especially  when 
he  is  a  minor,  which  will  not  excuse  like  interference  by  another. 


§§    45-46)      ENTICING,  ETC.,  OB   ALIENATION    OF   AFFECTION.  83 

The  same  doctrine,  it  has  been  held,  applies  where  a  wife  seeks 
to  recover  from  her  husband's  parent  for  enticing  him  away.*'  And 
there  is  no  reason  why  it  should  not  apply  where  a  brother  advises 
and  harbors  his  sister,  or  where  a  wife  is  advised  or  harbored  by  one 
who  has  stood  in  loco  parentis  towards  her.^** 

A  parent  or  person  in  loco  parentis  will  only  be  protected  under 
this  doctrine  where  he  acted  from  proper  motives.  Even  a  mother 
is  liable  to  her  son-in-law  if  she  entices  her  daughter  away  from  him, 
or  harbors  her,  not  from  proper  motives,  but  because  she  does  not 
like  him.^* 

A  person  may  render  himself  liable  under  this  doctrine  by  indu- 
cing a  woman  to  obtain  a  divorce  from  her  husband,  or  vice  versa.  It 
has  been  held  that,  though  a  wife  may  have  just  cause  for,  and  may  ob- 
tain, a  divorce  from  her  husband,  yet,  if  she  would  not  have  obtain- 
ed the  divorce  except  for  the  unsolicited  interference  of  a  third  person, 
the  divorce  does  not  constitute  any  defense  to  an  action  by  the  husband 
for  loss  of  his  wife's  society,  though  it  would  be  otherwise  if  the  wife 
sought  the  advice  of  her  own  motion."* 

Action  by  wife. 

There  is  a  conflict  of  opinion  as  to  the  right  of  the  wife  to  main- 
tain an  action  at  common  law  against  another  for  enticing  away  her 
husband,  or  alienating  his  affections.  In  some  jurisdictions  it  has  been 
held  that  neither  at  common  law  ^'  nor  under  the  statutes  allowing 
married  women  to  sue  ^*  can  such  an  action  be  maintained.     On  the 


2  9  Reed  V.  Reed,  6  Ind.  App.  317,  33  N.  E.  638,  51  Am.  St.  Rep.  310;  Gregg 
V.  Gregg,  37  Ind.  App.  210,  75  N.  E.  674. 

30  See  Glass  v.  Bennett,  89  Tenn.  478,  14  S.  W.  1085;  Powell  v.  Benthall, 
136  N.  C.  145,  48  S.  B.  598. 

31  Holtz  V.  Dick,  42  Ohio  St.  23,  51  Am.  Rep.  791.  And  see  Railsback  v. 
Railsback,  12  Ind.  App.  659,  40  N.  E.  276,  1119,  and  Klein  v.  Klein,  101  S. 
W.  382,  31  Ky.  Law  Rep.  28. 

82  Modisett  v.  McPike,  74  Mo.  030. 

8  3  Duffies  v.  Duffies,  76  Wis.  374,  45  N.  W.  522,  8  L.  R.  A.  420,  20  Am. 
St.  Rep.  79.  (Cassoday,  J.,  dissenting.)  In  this  case  the  question  is  con- 
sidered at  length,  and  many  authorities  are  collated.  See,  also,  Doe  v.  Roe, 
82  Me.  503,  20  Atl.  83,  8  L.  R.  A.  833,  17  Am.  St.  Rep.  499;  Morgan  v.  Mar- 
tin, 92  Me.  190,  42  Atl.  354;  Hodge  v.  Wetzler,  69  N.  J.  Law,  490,  55  Atl. 
49;  Crocker  v.  Crocker  (C.  0.)  98  Fed.  702;  Mehrhoflf  v.  Mehrhoff  (C.  C.) 
26  Fed.  13 ;  Houghton  v.  Rice,  174  Mass.  366,  54  N.  E.  843,  47  L.  R.  A.  310, 
75  Am.  St.  Rep.  351. 

34  Duffies  V.  Duffies,  76  Wis.  374,  45  N.  W.  522,  8  L.  R.  A.  420,  20  Am. 
St.  Rep.  79;    Hodge  y.  Wetzler,  69  N.  J.  Law,  490,  55  Atl.  49. 


84  RIGHTS   AND   DUTIES  INCIDENT  TO   COVERTURE.  (Ch.  2 

Other  hand  in  many  well-considered  cases,  the  right  of  the  wife  to 
sue  at  common  law  has  been  recognized,'"  though  it  must  be  confessed 
that  in  a  majority  of  the  cases  so  holding  the  opinion  thus  expressed 
is  in  the  nature  of  dictum.  The  reasoning  of  these  cases  is  "that,  in- 
asmuch as  the  husband  has  the  right  to  sue  for  the  loss  of  the  consor- 
tium of  the  wife,  there  can  be  no  intelligent  reason  why  she  should  not 
possess  the  right  to  sue  for  the  loss  of  the  society,  companionship,  af- 
fections, and  protection  of  the  husband,  which  the  law  has  vouchsafed 
to  her."  '"  "It  was  the  boast  of  the  common  law  that  'there  is  no 
right  without  a  remedy,'  and  in  the  main  this  boast  was  not  an  idle 
one,  but  was  made  good  by  the  vindication  of  legal  rights  in  almost 
all  instances  where  the  right  was  appropriately  presented  for  judicial 
consideration  and  determination.  *  *  *  The  principle  outlined  in 
the  maxim  quoted  requires  that  even  where  the  common  law,  as  it 
now  exists,  prevails,  it  should  be  held  that  a  wife  may  have  an  action 
against  the  wrongdoer  who  deprives  her  of  the  society,  support,  and 
affections  of  her  husband.  If  there  is  any  such  thing  as  legal  truth 
and  legal  right,  a  wronged  wife  may  have  her  action  in  such  a  case 
as  this ;  for,  in  all  the  long  category  of  human  rights,  there  is  no  clear- 
er right  than  that  of  the  wife  to  her  husband's  support,  society,  and 
affection.  An  invasion  of  that  right  is  a  flagrant  wrong,  and  it  would 
be  a  stinging  and  bitter  reproach  to  the  law  if  there  were  no  remedy."  '^ 
Whatever  may  have  been  the  rule  at  common  law,  however,  it  is 
well  settled  by  the  weight  of  authority  that  since  the  loss  of  service  is 
not  necessary  to  the  action,  and  the  right  to  each  other's  society  and 
comfort  is  reciprocal,*®  the  wife  may  maintain  such  an  action  when 
her  common-law  disability  to  sue  alone  has  been  removed  by  statute." 


«B  Noxon  V.  Remington,  78  Conn.  296,  61  Atl.  693;  Foot  v.  Card,  58  Conn. 
1,  18  Atl.  1027,  6  L.  R.  A.  829,  18  Am.  St.  Rep.  258;  Bennett  v.  Bennett, 
110  N.  Y.  584,  23  N.  E.  17,  6  L.  R.  A.  553;  Hayner  v.  Nowlin,  129  Ind.  581, 
29  N.  E.  389,  14  L.  R.  A,  787,  28  Am.  St.  Rep.  213;  Holmes  v.  Holmes,  133 
Ind.  386,  32  N.  E.  932;  Seaver  v.  Adams,  66  N.  H.  142,  19  Atl.  776,  49  Am. 
St.  Rep.  597;  Lynch  v.  Knight,  9  H.  L.  Cas.  577,  5  L/aw  Times  Rep.  (N. 
S.)  291. 

36  Adams  v.  Main,  3  Ind.  App.  232,  29  N.  E.  792,  50  Am.  St.  Rep.  266. 

37  Haynos  v.  Nowlin,  129  Ind.  581,  29  N.  E.  389,  14  L.  R  A.  787,  28  Am. 
St.  Rep.  213. 

38  Dodge  V.  Rush,  28  App.  D.  a  149;  Gregg  v.  Gregg,  37  Ind.  App.  210, 
75  N.   E.   674. 

39  Bennett  v.  Bennett,  116  N.  Y.  584,  23  N.  E.  17,  6  L.  R  A.  553 ;  Smith 
V.  Gillapp,  123  111.  App.  121;  Nolin  v.  Pearson,  191  Miss.  283,  77  N.  E.  890, 
4  L.  R.  A.  (N.  S.)  643,  114  Am.  St  Rep.  605;  Keen  v.  Keen,  49  Or.  362,  90 


§   47)  ACTION    FOR   CRIMINAL   CONVERSATION.  85 

ACTION   FOR   CRIMINAL    CONVERSATION. 

47.  An  action  for  damages,  kno-wn  as  an  "action  for  criminal  con- 
versation," lies  by  a  husband  against  one  'who  lias  intercourse 
ivitli  his  xTife  'without  his  consent. 

Closely  allied  to  suits  for  enticing  and  harboring,  and  still  more 
closely  connected  with  suits  for  alienation  of  affection,  are  suits  for 
criminal  conversation.  In  such  an  action  a  husband  can  recover  dam- 
ages against  any  one  who  has  intercourse  with  his  wife  without  his 
consent.*"  "Adultery,  or  criminal  conversation  with  a  man's  wife, 
though  it  is,  as  a  public  crime,  left  by  our  laws  to  the  coercion  of  the 
spiritual  courts,  yet,  considered  as  a  civil  injury  (and  surely  there  can 
be  no  greater),  the  law  gives  a  satisfaction  to  the  husband  for  it  by 
action  of  trespass  vi  et  armis  against  the  adulterer,  wherein  the  dam- 
ages recovered  are  usually  very  large  and  exemplary."  *^  This  action 
does  not,  like  actions  for  enticing,  harboring,  or  alienation  of  affection, 


Pac.  147,  10  L.  R.  A.  (N.  S.)  50i;  Warren  v.  Warren,  89  Mich.  123,  50  N. 
W.  842,  14  L.  R.  A.  545;  Westlake  v.  Westlake,  34  Ohio  St.  621,  32  Am.  Rep. 
397;  Haynes  v.  Nowlin,  129  Ind.  581,  29  N.  E.  389,  14  L.  R.  A.  787,  28  Am. 
St.  Rep.  213;  Adams  v.  Main,  3  Ind.  App.  232,  29  N.  E.  792,  50  Am.  St 
Rep.  266;  Holmes  v.  Holmes,  133  Ind.  386,  32  N.  E.  932;  Reed  v.  Reed,  6 
Ind.  App.  317,  33  N.  E.  638,  51  Am.  St.  Rep.  310;  Railsback  v.  Railsback, 
12  Ind.  App.  659,  40  N.  E.  276,  1119;  Seaver  v.  Adams,  66  N.  H.  142,  19  Atl. 
776,  49  Am.  St.  Rep.  597;  Bassett  v.  Bassett,  20  111.  App.  543;  Huling  v. 
Huling,  32  111.  App.  519;  Williams  v.  Williams,  20  Colo.  51,  37  Pac.  614; 
Mehrhoff  v.  Mehrhoflf  (C.  C.)  26  Fed.  18;  Waldron  v.  Waldron  (C.  C.)  45  Fed. 
315;  Price  v.  Price,  91  Iowa,  693,  60  N.  W.  202,  29  L.  R.  A.  150,  51  Am.  St. 
Rep.  360;  Bailey  v.  Bailey,  94  Iowa,  598,  63  N.  W.  341;  Hodgkinson  v.  Hodg- 
kinson,  43  Neb.  269,  61  N.  W.  577,  27  K  R.  A.  120,  47  Am.  St.  Rep.  759; 
Breiman  v.  Paasch,  7  Abb.  N.  C.  (N.  Y.)  249;  Baker  v.  Baker,  16  Abb.  N. 
C.  (N.  Y.)  293;  Jaynes  v.  Jaynes,  39  Hun,  40;  Clow  v.  Chapman,  125  Mo. 
101,  28  S.  W.  328.  26  L.  R.  A.  412,  46  Am.   St.  Rep.  468. 

40  3  Bl.  Comm.  139;  Add.  Torts,  589;  1  Jag.  Torts.  465,  467,  and  cases 
cited;  1  Bish.  Mar.,  Div.  &  Sep.  §  1365;  Smith  v.  Hockenberry,  138  Mich. 
129,  101  N.  W.  207;  Id.,  146  Mich.  7,  109  N.  W.  23,  117  Am.  St.  Rep.  G15; 
Hadley  v.  Heywood,  121  Mass.  236;  Winter  v.  Henn,  4  Car.  &  P.  498;  Crose 
V.  Rutledge,  81  111.  266;  Scripps  v.  Reilly,  38  Mich.  23;  Egbert  v.  Green- 
wait,  44  Mich.  245,  6  N.  W.  654,  38  Am.  Rep.  260;  Dalton  v.  Dregge,  99 
Mich.  250,  58  N.  W.  57;  Wood  v.  Mathews,  47  Iowa,  409;  Van  Vacter  v. 
McKillip,  7  Blackf.  (Ind.)  578;  Ferguson  v.  Smethers,  70  Ind.  519,  36  Am. 
Rep.  186;    and  cases  hereafter  cited. 

*i  3  Bl.  Comm.  139. 


86  EIGHTS   AND    DUTIES   INCIDENT   TO    COVERTURE.  (Ch.  2 

rest  on  the  loss  of  the  wife's  society,  affection,  or  services;  but  it 
rests  on  the  injury  sustained  by  the  defilement  of  the  marriage  bed,  the 
invasion  of  the  husband's  exclusive  right  to  marital  intercourse,  and 
the  suspicion  cast  upon  the  legitimacy  of  the  offspring.* ^  One  who 
commits  rape  is  liable  in  this  action.*^  The  intercourse  need  not  have 
been  the  result  of  seduction.**  It  is  true  that,  as  in  actions  for  enti- 
cing, harboring,  etc.,  the  husband  may,  in  an  action  for  criminal  con- 
versation, show  the  alienation  of  his  wife's  affection,  and  the  loss  of 
her  services,  society,  etc.,  but  this  only  goes  in  aggravation  of  damages. 
It  need  not  necessarily  be  shown,  for  the  action  is  not  based  on  any 
pecuniary  loss.*'  The  relations  on  which  the  spouses  lived,  whether 
happy  or  otherwise,  and  previous  acts  of  adultery,  either  by  the  hus- 
band or  the  wife,  may  always  be  shown,  as  bearing  on  the  question 
of  damages. *°  But  they  cannot  be  relied  upon  to  defeat  the  husband's 
action  entirely.  A  husband  may  sue  for  criminal  conversation,  though 
he  is  living  apart  from  his  wife,  and  leading  a  dissolute  life.*^ 

It  is,  of  course,  a  good  defense  to  the  action,  on  the  principle  "Vo- 
lenti non  fit  injuria,"  that  the  husband  consented  to  the  particular 

*2  Reeve,  Dom.  Rel.  (4th  Ed.)  90;  Cooley,  Torts,  224;  Kroessin  v.  Kel- 
ler, 60  Minn.  372,  62  N.  W.  438,  27  L.  R.  A.  685,  51  Am.  St.  Rep.  533;  Bi- 
gaouette  v.  Paulet,  134  Mass.  123,  45  Am,  Rep.  307;  Johnston  v.  Disbrow,  47 
Mich.  59,  10  N.  W.  79;  Egbert  v.  Greenwalt,  44  Mich.  245,  6  N.  W.  654, 
38  Am.  Rep.  260;  Yundt  v.  Hartrunft,  41  111.  9;  Wood  v.  Mathews,  47  Iowa, 
409;    Bodan  v.  Turney,  99  Cal.  649,  34  Pac.  442. 

43  Egbert  v.  Greenwalt,  44  Mich.  245,  6  N.  W.  654,  38  Am.  Rep.  260;  Bi- 
gaouette  v.  Paulet,  134  Mass.  123,  45  Am.  Rep.  307. 

**  Weedon  v.  Timbrell,  5  Term  R.  360;  Wales  v.  Miner,  89  Ind.  118;  Wood 
V.  Mathews,  47  Iowa,  409;    Hadley  v.  Hey  wood,  121  Mass.  236. 

*6  See  cases  above  cited.  And  see  Prettyman  v.  Williamson,  1  Penne- 
will  (Del.)  224,  39  Atl.  731;   Long  v.  Booe,  106  Ala.  570,  17  South.  716. 

<«3  Suth.  Dam.  745;  Add.  Torts,  593;  2  Greenl.  Ev.  §  56;  Reeve,  Dom. 
Rel.  (4th  Ed.)  91;  Winter  v.  Henn,  4  Car.  &  P.  494;  Bromley  v.  Wallace, 
4  Esp.  237 ;  Ck)leman  v.  White,  43  Ind.  429 ;  Browning  v.  Jones,  52  111.  App. 
597;  Hadley  v.  Heywood,  121  Mass.  236;  Conway  v.  Nicol,  34  Iowa,  533; 
Dance  v.  McBride,  43  Iowa,  624;  Dalton  v.  Dregge,  99  Mich.  250,  58  N.  W. 
57;  Smith  v.  Masten,  15  Wend.  (N.  Y.)  270;  Shattuck  v.  Hammond,  46  Vt. 
466,  14  Am.  Rep.  631;  Norton  v.  Warner,  9  Conn.  172;  Rea  v.  Tucker,  51 
111.  110,  99  Am.  Dec.  539;  Torre  v.  Summers,  2  Nott  &  McC.  (S.  C.)  267,  10 
Am  Dec.  597.  In  mitigation  of  damages,  it  may  be  shown  that  the  wife 
was  the  seducer.  Elsam  v.  Faucett,  2  Esp.  562;  Ferguson  v.  Smethers,  70 
Ind.  519,  36  Am.  Rep.  186. 

*7  Browning  v.  Jones,  52  111.  App.  597;  Evans  v.  Evans,  GS  Law  J.  Prob. 
70,  11899J  Prob.  195,  81  Law  T.  (N.  S.)  60. 


§    47)  ACTION    FOR   CRIMINAL   CONVERSATION.  87 

act  of  intercourse  complained  of,  or  that  he  gave  his  wife  a  general 
license  to  conduct  herself  with  other  men  as  she  saw  fit,  or  allowed 
her  to  live  as  a  common  prostitute.*' 

But  continued  cohabitation  after  knowledge  of  acts  of  adultery, 
though  amounting  to  condonation,  barring  an  action  for  divorce,*^ 
is  not  a  defense  to  the  action  for  criminal  conversation.''** 

When  we  consider  the  grounds  upon  which  the  action  for  criminal 
conversation  rests,  it  would  seem  clear  that  a  wife  could  not  maintain 
such  an  action  against  another  woman  for  having  intercourse  with  her 
husband,  and  it  has  been  so  held."  There  are  cases  to  the  contrary, 
or  apparently  so ;  but  in  these  cases  the  court  relied,  as  authority  for 
their  decision,  upon  those  cases  which  uphold  an  action  by  a  wife 
for  alienation  of  her  husband's  affection,  or  for  enticing  him  away.^^ 
As  we  have  seen,  the  grounds  for  these  different  kinds  of  action  are  dif- 
ferent. Because  a  wife  is  allowed  to  maintain  an  action  against  a  wo- 
man who  entices  her  husband  away  from  her,  or  alienates  his  affec- 
tions without  enticing  him  away,  is  no  reason  for  holding  that  a  wife 
can  maintain  an  action  against  a  woman  for  criminal  conversation  with 
her  husband."     To  entitle  a  wife  to  maintain  an  action  against  one 

48  Winter  v.  Henn,  4  Car.  &  P.  494;  Hodges  v.  Windham,  1  Peake,  38; 
Bunnell  v.  Greathead,  49  Barb.  (N.  Y.)  106;  Morning  v.  Long,  109  Iowa, 
288,  80  N.  W.  390;  Rea  v.  Tucker,  51  111.  110,  99  Am.  Dec.  539;  Stumm  v. 
Hummel,  39  Iowa,  478;  Cook  v.  Wood,  30  Ga.  891,  76  Am.  Dec.  677;  San- 
born V.  Neilson,  4  N.  H.  501;  Schorn  v.  Berry,  63  Hun,  110,  17  N.  Y.  Supp. 
572;  Fry  v.  Drestler,  2  Yeates  (Pa.)  278.  Connivance  by  a  husband,  suffi- 
cient to  bar  an  action  for  criminal  conversation,  must  be  such  conduct  as 
when,  subjected  to  the  test  of  reasonable  human  transactions,  shows  an  in- 
tention to  connive,  evidenced  by  his  active  or  passive  assent  to  transac- 
tions tending  to  convince  an  ordinarily  prudent  person  of  his  wife's  of- 
fense.    Kohlhoss  v.  Mobley,  102  Md.  109,  62  Atl.  236. 

4  9  See  post,  p.  219. 

60  Smith  V.  Hockenberry,  138  Mich.  129,  101  N.  W.  207;  Id.,  140  Mich. 
7,  109  N.  W.  23,  117  Am.  St.  Kep.  615;  Sanborn  v.  Neilson,  4  N.  H.  501; 
Clouser  v.  Clapper,  59  Ind.  548;  Verholf  v.  Van  Houwenlengen,  21  Iowa, 
429;  Sikes  v.  Tippins,  85  Ga.  231,  11  S.  E.  662;  Powers  v.  Powers,  10  Prob. 
Div.   174. 

61  Kroessin  v.  Keller,  60  Minn.  372,  62  N.  W.  438,  27  L.  R.  A.  685,  51  Am. 
St.  Rep.  533. 

62  Seaver  v.  Adams,  60  N.  H.  142,  19  Atl.  776,  49  Am.  St.  Rep.  597;  Haynes 
V.  Nowlin,  129  Ind.  581,  29  N.  E.  389,  14  L.  R.  A.  787,  28  Am.  St.  Kep.  213" 
Dodge  v.  Rush,  28  App.  D.  C.  149. 

58  See  Kroessin  v.  Keller,  60  Minn.  372,  62  N.  W.  438,  27  L.  R.  A.  685, 
51  Am.  St.  Rep.  533;  Doe  T.  Roe,  82  Me.  503,  20  Atl.  83,  8  L.  R.  A.  833,  17 
Am.  St.  Rep.  499. 


88  RIGHTS   AND   DUTIES   INCIDENT   TO   COVERTURE.  (Ch.  2 

who  has  intercourse  with  her  husband,  she  must  show  something  more 
than  the  mere  fact  of  intercourse.  She  must  show  an  enticing  away, 
or  alienation  of  the  affection  of,  her  husband.  A  husband  can  main- 
tain an  action  for  criminal  conversation  against  one  who  commits  a 
rape  upon  his  wife.  Assuming  the  possibility  of  a  woman  compelling 
a  man,  against  his  will,  to  have  intercourse  with  her,  it  would  hardly 
be  contended  that  this  alone  would  give  the  man's  wife  a  right  of 
action. 

On  the  other  hand,  in  Dodge  v.  Rush,"*  the  court,  holding  that  the 
right  of  action  existed,  said:  "While  the  injurious  consequences  of  a 
wife's  adultery  may  be  more  far  reaching,  because  of  probable  difficul- 
ties and  embarrassments  in  respect  of  the  legitimacy  of  children,  her 
conjugal  rights  are  in  principle  the  same,  substantially,  as  his.  What- 
ever the  ancient  doctrine  may  have  been,  modern  morals  and  law  rec- 
ognize the  equal  obligation  and  right  of  husband  and  wife." 

5*  28  App.  D.  C.  149. 


§   48)  EIGHTS  IN   PROPERTY  AS  AFFECTED   BY  COVERTURE.  89 

CHAPTER  III. 
RIGHTS   IN  PROPERTY   AS    AFFECTED    BY   COVERTURR 

48.  Wife's  Earnings. 

49.  Wife's  Personalty  in  Possession, 
60-51.     Wife's  Glioses  in  Action. 

52.  Administration  of  Wife's  Estate. 

53.  Wife's  Chattels  Real. 

54.  Wife's  Estates  of  Inheritance — Curtesy. 

55.  Wife's  Estates  for  Life. 

56.  Property  Acquired  by  Wife  as  Sole  Trader. 

57.  Wife's  Equitable  Separate  Estate. 

58.  Wife's  Statutory  Separate  Estate. 

59.  Wife's  Rights  in  Husband's  Property — Dower  and  Thirds. 

60.  Estates  by  the  E^ntirety. 

61.  Community  Property. 

As  has  already  been  stated,  the  effect  of  marriage,  at  common  law, 
is  to  suspend  the  legal  existence  of  the  wife,  for  most  purposes,  dur- 
ing coverture,  and  merge  it  in  that  of  the  husband.  Upon  this  princi- 
ple depend  many  of  the  rules  relating  to  property  as  affected  by  mar- 
riage. Of  course  the  husband's  legal  existence  is  not  affected  by  mar- 
riage, and,  therefore,  property  and  property  rights,  owned  or  acquired 
by  him,  are  not  during  his  life  affected  by  the  marriage,  though  cer- 
tain rights  therein  are  given  the  wife  on  his  death,  and  in  some  states 
by  statute  the  doctrine  of  community  property  has  been  adopted  from 
the  civil  law.  As  we  shall  now  see,  however,  it  is  otherwise  with  re- 
gard to  the  property  and  property  rights  owned  or  acquired  by  the 
wife. 

W^IFE'S  EARNINGS. 

48.  At  common  la'w  the  husband  is  entitled  absolntely  to  Iiis  wife's 
earnings,  but  under  modern  statutes  she  is  generally  entitled 
to  earnings  derived  from  services  apart  from  the  household  or 
business   of  the   husband. 

At  common  law,  the  husband  is  entitled  to  the  earnings  of  his  wife. 
He  takes  all  the  proceeds  of  her  industry,  whether  it  is  in  the  form 
of  money  paid  her,  or  other  property.^     The  rule  not  only  applies  to 

1  Offley  V.  Clay,  2  Man.  &  G.  172;  Buckley  v.  Collier,  1  Salk.  114;  Russell 
T.  Brooks,  7  Pick.  (Mass.)  65;    McDavid  v.  Adams,  77  111.  155;    Schwartz  v. 


90  RIGHTS  IN   PROPERTY   AS  AFFECTED   BY  COVERTURE.  (Ch.  3 

earnings  which  have  actually  been  received  by  him  or  by  her,  but  it 
also  applies  to  earnings  which  are  due,  unless  there  is  an  express  prom- 
ise to  the  wife.  The  husband  alone  is  entitled  to  receive  such  earnings, 
and  he  must  sue  therefor  in  his  own  name.''  In  case  of  his  death  the 
action  cannot  be  maintained  by  the  wife,  as  she  has  never  been  en- 
titled to  the  earnings,  but  must  be  brought  by  the  personal  representa- 
tives of  the  husband.^  The  rules  are  different  if  the  wife  can  show 
an  express  promise  to  her  by  the  debtor.  In  such  a  case  an  action  to 
recover  the  earnings  may  be  maintained  by  the  husband  and  wife,*  or 
by  the  wife  alone  after  the  death  of  the  husband.'' 

It  follows  from  this  doctrine  that  the  husband  only  can  release  the  • 
debtor  from  liability  for  the  wife's  earnings.    The  debtor  cannot  dis- 
charge his  liability  by  paying  the  wife,  and  taking  her  separate  receipt, 
unless  the  payment  has  been  authorized  by  the  husband.^     As  will  be 
seen  in  another  place,  the  husband  may  appoint  his  wife  his  agent  to 

Saunders.  46  111.  18;  Bear  v.  Hays,  36  111.  280;  Prescott  v.  Brown,  23  Me. 
305,  39  Am.  Dec.  623 ;  Seitz  v.  Mitchell,  94  U.  S.  580,  24  L.  Ed.  179 ;  Yopst 
V.  Yopst,  51  Ind.  61 ;  Turtle  v.  Muncy,  2  J.  J.  Marsh.  (Ky.)  82 ;  Armstrong  v. 
Armstrong,  32  Miss.  279 ;  Skillman  v.  Skillman,  15  N.  J.  Eq.  478 ;  Bucher  v. 
Ream,  G8  Pa.  421;  Reynolds  v.  Robinson,  64  N.  Y.  589;  Carleton  v.  Rivers, 
54  Ala.  467;  Hawkins  v.  Railroad  Co.,  119  Mass.  596,  20  Am.  Rep.  353;  Ewell, 
Lead.  Cas.  355,  and  cases  there  cited.  "By  the  common  law,  the  earnings  of 
the  wife,  the  product  of  her  skill  and  labor,  belong  to  the  husband.  They  do 
not  become  the  property  of  the  wife,  even  in  equity,  without  a  clear,  ex- 
press, irrevocable  gift,  or  some  distinct  affirmative  act  of  the  husband,  divest- 
ing himself  of  them  or  setting  them  apart  for  her  separate  use."  Skillman 
V.  Skillman,  15  N.  J.  Eq.  478.  And  see  McLemore  v.  Pinkston,  31  Ala.  266,  68 
Am.  Dec.  169.  The  rule,  of  course,  applies  to  the  joint  earnings  of  husband 
and  wife,  as  where  they  work  together  in  carrying  on  a  boarding  house, 
hotel,  or  any  other  business.  Shaeffer  v.  Sheppard,  54  Ala.  244;  Bowden  v. 
Gray,  49  Miss.  547 ;  Reynolds  v.  Robinson,  64  N.  Y.  589 ;  Carleton  v.  Rivers; 
54  Ala.  467.  Property  purchased  by  the  wife  with  the  proceeds  of  her  labor 
is  within  the  rule.  Hawkins  v.  RaUroad  Co.,  119  Mass.  596,  20  Am.  Rep.  353 ; 
Carleton  v.  Rivers,  54  Ala.  467. 

2  Buckley  v.  Collier,  1  Salk.  114;  Offley  v.  Clay,  2  Man.  &  G.  172;  Russell 
V.  Brooks,  7  Pick.  (Mass.)  65;  McDavid  v.  Adams,  77  HI.  155;  Gould  v.  Carl- 
ton, 55  Me.  511. 

3  Prescott  v.  Brown,  23  Me.  305,  39  Am.  Dec.  623;  Buckley  v.  Collier,  1  Salk. 
114. 

4  Prat  V.  Taylor,  Cro.  Eliz.  61;  Brashford  v.  Buckingham,  Cro.  Jac.  77,  205; 
Weller  v.  Baker,  2  Wils.  424. 

6  Prescott  v.  Brown,  23  Me.  305,  39  Am.  Dec.  623. 

e  Offley  v.  Clay,  2  Man.  &  G.  172;   Russell  v.  Brooks,  7  Pick.  (Mass.)  65. 


§  48)  wife's  earnings.  91 

receive  her  earnings;    and,  subject  to  restrictions  as  to  creditors,  he 
may  give  them  to  her. 

Effect  of  Modern  Statutes. 

The  right  of  the  husband  to  the  services  and  earnings  of  the 
wife  is  not  changed  by  the  general  statutes  relating  to  the  proper- 
ty of  married  women. ^  In  many  states,  however,  the  statute  ex- 
pressly provides  that  the  earnings  of  the  wife  shall  be  her  separ- 
ate property,  and  under  such  statutes  earnings  derived  from  serv- 
ices other  than  those  rendered  in  the  household  or  business  of  the 
husband  belong  to  her.* 

As  to  those  services  rendered  in  the  household  or  the  business 
of  the  husband,  the  earnings,  in  the  absence  of  a  special  agreement, 
belong  to  the  husband,®   and  in  some  states  it  is  held  that,  unless 

7  Merrill  v.  Smith,  37  Me.  394 ;  Lee  v.  Savannah  Guano  Ck).,  99  Ga.  572,  27 
S.  E.  159,  59  Am.  St  Rep.  243 ;  Blaechinska  v.  Howard  Mission  &  Home  for 
LitUe  Wanderers,  130  N.  Y.  497,  29  N.  E.  755,  15  L.  R,  A.  215 ;  McClintie  v. 
McClintie,  111  Iowa,  615,  82  N.  W.  1017. 

8  Code  Ala.  1907,  §  4487 ;  Kirby's  Dig.  Ark.  1904,  §  5214 ;  Burns'  Ann.  St. 
Ind.  1908,  §  7867;  Rev.  St.  Me.  1903,  c.  63,  §  3;  Rev.  Laws  Minn.  1905,  § 
3606;  Larkin  v.  Woosley,  109  Ala.  258,  19  South.  520;  Stevens  v.  Cunningham, 
181  N.  T.  454,  74  N.  E.  434;  Blaechinska  v.  Howard  Mission  &  Home  for 
Little  Wanderers,  130  N.  Y.  497,  29  N.  E.  755,  15  L.  R.  A.  215;  Brooks  v. 
Schwerin,  54  N.  Y.  343 ;  Nuding  v.  Urich,  169  Pa.  289,  32  Atl.  409 ;  Grant  v. 
Sutton,  90  Va.  771,  19  S.  E.  784;  Emerson-Talcott  Co.  v.  Knapp,  90  Wis.  34, 
02  N.  W.  945 ;  Turner  v.  Davenport,  63  N.  J.  Eq.  288,  49  Atl.  463.  See,  also, 
Elliott  V.  Hawley,  34  Wash.  585,  76  Pac.  93,  101  Am.  St.  Rep.  1016;  In  re 
Lewis'  Estate,  156  Pa.  337,  27  Atl.  35  (keeping  boarders) ;  Perry  v.  Blumen- 
thal,  119  App.  Div.  663,  104  N.  Y.  Supp.  127  (keeping  boarders).  But  see 
Cory  V.  Cook,  24  R,  I.  421,  53  Atl.  315,  holding  that  where  board  is  furnish- 
ed in  a  household,  it  is  to  be  presumed,  in  the  absence  of  agreement  to  the 
contrary,  or  evidence  that  the  wife  furnished  it  from  her  separate  estate,  that 
the  husband  is  entitled  to  compensation  therefor.  But  even  where  the  hus- 
band keeps  a  house  of  entertainment,  so  that  the  services  of  the  wife  in  con- 
nection with  the  keeping  of  boarders  would  belong  to  the  husband,  she  is, 
nevertheless,  entitled  to  compensation  for  extra  labor  performed  for  such 
boarders,  such,  as  making,  mending,  or  washing  clothes.  Vincent  v.  Ireland, 
2  Peunewill  (Del.)  580,  49  Atl.  172.  In  Turner  v.  Davenport,  63  N.  J.  Eq.  288, 
49  Atl.  463,  it  was  hold  that  the  wife  could  recover  for  services  rendered 
to  a  partnership  of  which  her  husband  was  a  member. 

9  Coleman  v.  Burr,  93  N.  Y.  17,  45  Am.  liep,  160 ;  Brooks  v.  Schwerin,  54 
N.  Y.  343;  Standen  v.  Pennsylvania  R.  Co.,  214  Pa.  189,  63  Atl.  467;  Kennedy 
v.  Swisher,  34  Ind.  App.  676,  73  N.  E.  724;  Monahan  v.  Monahan,  77  Vt. 
133,  59  AU.  169,  70  L.  R.  A.  935.  It  is,  however,  held  in  some  states  that  if 
the  parUes  so  agree  the  wife  may  be  entitled  to  her  earnings  derived  from 


92        RIGHTS  IN  PROPERTY  AS  AFFECTED  BY  COVERTURE.    (Ch.  3 

the  statute  gives  the  wife  the  right  to  contract  as  a  feme  sole  with 
any  person,  including  her  husband,  she  cannot,  even  under  a  con- 
tract with  the  husband,  acquire  the  right  to  her  earnings  derived 
from  services  rendered  him  in  his  business, ^°  though  as  to  services 
rendered  independently  the  earnings  are  her  property.** 

Wife  as  Sole  Trader. 

As  will  presently  be  seen,  the  wife  may,  by  the  aid  of  a  court  of 
equity,  under  an  agreement  with  her  husband,  carry  on  a  separate 
trade  or  business  for  her  own  use  and  benefit,  in  which  case,  in  equity, 
she  \jrill  be  entitled  to  hold  the  profits  therefrom  to  her  separate  use.** 

WIFE'S  PERSONALTY  IN  POSSESSION. 

49.  At  common,  laxtr,  the  xrife's  personalty  in  possession  vests  excln- 
sively  in  her  hnsband,  -without  any  act  on  his  part,  and  on 
his  death  passes  to  his  personal  representatives.  This  is  true 
as  to  personalty  oxmed  by  her  at  the  time  of  the  marriage, 
and  personalty  acquired  during  coverture,  and  as  to  personal^ 
ty  in  her  actual  possession,  and  personalty  in  the  actual  pos- 
session of  some  third  person  not  holding  adversely. 
EXCEPTIONS.— The  rule  does  not  apply  to  the  wife's  parapherna- 
lia; that  is,  such  articles  of  wearing  apparel,  personal  orna- 
ment, or  convenience  as  are  suitable  to  her  rank  and  condi- 
tion. These  belong  to  the  husband,  like  other  personalty  in 
possession;  but,  if  undisposed  of  by  him,  they  belong  to  the 
w^ife  on  his  death. 

At  common  law,  all  the  personal  property  of  a  woman,  including 
money,  and  goods  and  chattels  of  every  description,  which  she  has  in 
possession  at  the  time  of  her  marriage,  vests  absolutely  in  her  hus- 

her  services  In  the  household  or  her  husband's  business.  Nuding  v.  Urlch,  16» 
Pa.  289,  32  Atl.  409 ;  Bodkin  v.  Kerr,  97  Minn.  301,  107  N.  W.  137 ;  Vansickle 
V.  Wells,  Fargo  &  Co.  (0.  C.)  105  Fed.  16. 

10  Blaechinska  v.  Howard  Mission  &  Home  for  Little  Wanderers,  130  N. 
Y.  497,  29  N.  E.  755,  15  L.  R.  A.  215  (under  Laws  1884,  p.  465,  c.  381).  See, 
also,  Lee  v.  Savannah  Guano  Co.,  99  Ga.  572,  27  S.  E.  159,  59  Am.  St.  Rep.  243. 
But  see  Turner  v.  Davenport,  63  N.  J.  Eq.  288,  49  Atl.  403,  holding  that  a 
i\)arried  woman  may  contract  with  a  firm  in  which  her  husband  is  a  member, 
and  recover  In  equity  for  wages  for  her  personal  services  under  such  contract. 

11  Kennedy  v.  Swisher,  34  Ind.  App.  676,  73  N.  B.  724;  Hamilton  v.  Ham- 
ilton's Estate,  26  Ind.  App.  114,  69  N.  B.  344;  Turner  v.  Davenport,  63  N.  J. 
Eq.  288,  49  Atl.  463. 

12  Post,  p.  120. 


§  49)  wife's  personalty  in  possession.  93 

band,  and  becomes  as  much  his  as  if  it  had  been  originally  acquired 
by  him.  He  may  dispose  of  it  as  he  sees  fit;  it  may  be  seized  by  his 
creditors  and  subjected  to  the  payment  of  his  debts;  and  on  his 
death  it  will  go  to  his  personal  representatives,  even  though  the  wife 
may  be  the  survivor.^*  The  same  rule  applies  to  personalty  acquired 
by  the  wife  during  coverture,  whether  by  gift,  bequest,  purchase,  or 
by  her  own  labor.^*  And  it  applies  to  money  received  as  the  proceeds 
of  her  real  estate,  either  as  rent  or  as  purchase  money  on  a  sale 
thereof."  If  the  wife's  interest  was  that  of  a  tenant  in  common, 
the  husband  assumes  the  same  relation  in  her  place."  Personalty  in 
possession,  though  settled  to  the  separate  use  of  the  wife,  passes  to 
him  personally,  on  her  death,  jure  mariti;  for  a  wife's  separate  estate 
lasts  only  during  coverture.^' 

13  2  Kent,  Comm.  143;  Co.  Litt.  351b;  2  Bl.  Comm.  434;  Lamphir  v.  Creed, 
8  Ves,  599;  Ellington  v.  Harris,  127  Ga.  85,  56  S.  E.  134,  119  Am.  St.  Rep.  320; 
Legg  V.  Legg,  8  Mass.  99;  Jordan  v.  Jordan,  52  Me.  320;  Crosby  v.  Otis,  32 
Me.  256;  Carleton  v.  Lovejoy,  54  Me.  445;  Hawkin's  Adm'r  v.  Craig,  6  T.  B. 
Mon.  (Ky.)  254;  Morgan  v.  Bank,  14  Conn.  99;  Tune  v.  Cooper,  4  Sneed 
(Tenn.)  296;  Hoskins  v.  Miller,  13  N.  C.  360;  Caffey  v.  Kelly,  45  N.  C.  48; 
Cropsey  v.  McKinney.  30  Barb.  (N.  Y.)  47;  Hyde  v.  Stone,  9  Cow.  (N.  Y.)  230, 
18  Am.  Dec.  501;  Colbert  v.  Daniel,  32  Ala.  314,  327;  Rixey's  Adm'r  v.  Deit- 
rick,  85  Va.  42,  6  S.  E.  615.  But  the  husband  may  waive  his  right  and  per- 
mit the  wife  to  own  and  control  such  personalty  as  of  her  separate  estate. 
Boldrick  v.  Mills,  96  S.  W.  524,  29  Ky.  Law  Rep.  852.  Mere  admissions  by  a 
husband  who  has  purchased  realty  with  personalty  belonging  originally  to  his 
wife,  but  which  has  vested  in  him  by  his  marriage,  that  he  holds  the  land  for 
the  benefit  of  the  heirs  of  his  wife,  will  not  divest  the  title  of  his  heirs,  imless 
there  has  been  during  the  lifetime  of  the  wife  a  gift  to  her  of  the  chattels, 
title  to  which  the  husband  acquired  by  the  marriage,  or  such  a  gift  of  the 
proceeds  of  the  sale  of  such  chattels  before  the  same  were  invested  in  land. 
Ellmgton  v.  Harris,  127  Ga.  85,  56  S.  E.  134,  119  Am.  St  Rep.  320. 

14  Newlands  v.  Paynter,  4  Mylne  &  C.  408;  Carne  v.  Brice,  7  Mees.  &  W. 
183 ;  Leslie  v.  Bell,  73  Ark.  338,  84  S.  W.  491 ;  Shirley  v.  Shirley,  9  Paige  (N. 
Y.)  363;  Vreeland's  Ex'rs  v.  Ryno's  Ex'r,  26  N.  J.  Eq.  IGO;  Kensington  v. 
Dollond,  2  Mylne  &  K.  184 ;  Ewing  v.  Helm,  2  Tenn.  Ch.  368.  As  to  earnings 
of  the  wife,  see  ante,  p.  89. 

15  Plummer  v.  Jarman,  44  Md.  632;  Lichtenberger  v.  Graham,  50  Ind.  288; 
Hamlin  v.  Jones,  20  Wis.  536;  Crosby  v.  Otis,  32  Me.  256;  Martin  v.  Martin, 
1  N.  Y.  473;  Sheriff  of  Fayette  v.  Buckner,  1  Litt.  (Ky.)  126;  Thomas  v.  Chi- 
cago, 55  111.  403. 

18  Hyde  v.  Stone,  9  Cow.  (N.  Y.)  230,  18  Am.  Dec.  501 ;  Hopper  v.  McWhor- 
ter,  18  Ala.  229. 

IT  2  Macq.  ITusb.  &  W.  288;  Molony  v.  Kennedy,  10  Sim.  254;  Brown's 
Adm'rs  V.  Brown's  Adm'rs,  6  Humph.  (Tenn.)  127. 


94  RIGHTS  IN  PROPERTY  AS  AFFECTED   BY   COVERTURE.  (Ch.  3 

Personal  property  which  is  constructively  in  the  wife's  possession 
vests  in  the  husband  equally  with  that  in  her  actual  possession.  In 
legal  contemplation,  personalty  of  the  wife,  in  the  hands  of  another 
person,  whose  possession  is  not  adverse,  is  in  her  possession.  Thus  a 
chattel  in  the  hands  of  another  under  a  contract  for  hire  is  in  the 
wife's  possession,  since  the  possession  of  a  bailee  is  that  of  the  bail- 
or.^' Likewise  the  possession  of  her  agent  is  that  of  the  wife;  ^®  the 
possession  of  a  guardian  is  that  of  the  ward ;  *"  the  possession  of  a 
donor  retaining  possession  for  life  is  that  of  the  donee ;  ^^  and  so 
generally  chattels  in  the  hands  of  another,  not  under  a  hostile  claim, 
are  in  the  possession  of  the  owner.^^  In  Alabama  it  has  been  held 
that  the  possession  of  the  wife  must  be  actual,  and  not  construct- 
ive;^^   but  the  great  weight  of  authority  is  against  such  a  view. 

When  the  property  is  in  the  hands  of  another,  whose  relations  to 
the  wife  are  those  of  a  debtor,  and  not  a  bailee  or  servant,  his  pos- 
session is  not  the  wife's  possession.  She  has  only  a  right  to  posses- 
sion or  a  chose  in  action.  For  instance,  money  in  bank  is  the  prop- 
erty of  the  bank,  and  the  wife  has  only  a  chose  in  action,  the  rela- 
tion being  purely  that  of  debtor  and  creditor,^*  So  where  a  person 
received  money  from  another  to  be  appropriated  to  a  married  woman, 
the  court  held  that,  nothing  having  been  done  to  vest  any  property 
in  any  coin  as  a  chattel,  the  money  did  not  vest  in  the  husband,  but 
remained  a  chose  in  action  in  the  wife.^"^  The  rules  relating  to  the 
wife's  choses  in  action  are  explained  in  a  subsequent  section. 

The  husband's  right  to  his  wife's  personalty  in  possession  is  the 
result  of  the  marriage,  and  depends  upon  nothing  else.     It  lasts  as 


18  Whitaker  v.  Whitaker,  12  N.  C.  310;  Magee  v.  Toland,  8  Port.  (Ala.) 
36;  Morrow  v.  Whitesides'  Ex'r,  10  B.  Mon.  (Ky.)  411;  Armstrong  v.  Simon- 
ton's  Adm'r,  6  N.  C.  351 ;   Dade  v.  Alexander,  1  Wash.  (Va.)  30. 

19  Crosby  v,  Otis,  32  Me.  256. 

2  0  Magee  v.  Toland,  8  Port.  (Ala.)  36;  Davis  v.  Rhame,  1  McCord,  Eq.  (S. 
C.)  191;  Sallee  v.  Arnold,  32  Mo.  532,  82  Am.  Dec.  144;  Miller  v.  Blackburn, 
14  Ind.  G2 ;  Daniel  v.  Daniel,  2  Rich.  Eq.  (S.  G.)  118,  44  Am.  Dec.  244 ;  Mc- 
Daniel  v.  Whitman,  16  Ala.  343 ;  Chambers  v.  Perry,  17  Ala.  726 ;  Davis'  Ai>- 
peal,  60  Pa.  118. 

21  Banks'  Adm'rs  v.  Marksberry,  3  Litt.  (Ky.)  275. 

22  Wallace  v.  Bm-den,  17  Tex.  467;  Caffey  v.  Kelly,  45  N.  C.  48;  Brown  v. 
Fltz,  13  N.  H.  283 ;    Sausey  v.  Gardner,  1  Hill  (S.  C.)  191. 

2  3  Mason  v.  McNeill's  Ex'rs,  23  Ala,  214;    Hair  v.  Avery,  28  Ala.  273. 
24  Carr  v.  Carr,  1  Mer.  543,  note. 

3  5  Fleet  V.  Perrins,  L.  R.  3  Q.  B.  536;    Id.,  L.  R.  4  Q.  B.  500. 


§§  50-51)  wife's  choses  in  action.  95 

long  as  the  marriage  relation  lasts.  He  does  not  lose  the  right  by  a 
divorce  a  mensa  et  thoro,  or  judicial  separation,^ ^  though  it  is  other- 
wise in  the  case  of  a  divorce  a  vinculo  matrimonii,  for  that  puts  an 
end  to  the  relation.  The.  husband  does  not  lose  this  right  even  by 
deserting  his  wife  and  living  in  adultery.*^ 

Wife's  Paraphernalia. 

The  wife's  paraphernalia,  being  such  articles  of  wearing  apparel, 
personal  ornament,  or  convenience  as  are  suitable  to  her  rank,^* 
which  she  had  at  the  time  of  marriage,  or  which  are  given  to  her  by 
her  husband  during  coverture,  follow  a  different  rule.  Like  other 
personalty  in  possession,  they  belong  to  the  husband ;  but,  if  not  dis- 
posed of  by  him  during  his  life,  they  become  her  absolute  property,^* 
subject,  however,  to  the  claims  of  the  husband's  creditors.^"  In 
most  states  there  are  statutes  making  similar  provisions  for  the  widow. 

WIFE'S   CHOSES   IN   ACTION. 

50,  A   hnsband   is   entitled   to   Ms   wife's   choses    in  action   if  lie   re- 

duces them,  to  possession  during  coverture,  but  not  otherwise. 
To  reduce  them  to  possession  he  must  exert  some  act  of  owm- 
ership  over  them,  with  the  intention  of  converting  them  to 
his  oxvn  use. 

51.  EQUITY  TO  A  SETTLEMENT— If  necessary  to  ask  the  aid   of  a 

court  of  equity  to  reduce  the  w^ife's  choses  in  action  to  pos- 
session, the  husband  must  make  suitable  provision  for  the 
maintenance  of  the  w^if e  and  children. 

While  the  wife's  personal  property  in  possession  vests  absolutely 
in  the  husband  by  virtue  of  the  marriage  alone,  without  any  act  on 
his  part,  it  is  otherwise  with  her  choses  in  action.  These  do  not 
vest  in  him  unless  he  does  some  act  during  the  coverture  by  which 
he  appropriates  them  to  himself,  or,  as  it  is  expressed,  reduces  them 
to  possession.    If  he  fails  to  reduce  them  to  possession  during  cover- 


28  Glover  v.  Proprietors  of  Drury  Lane,  2  Chit.  117;  Washburn  v.  Hale,  10 
Piclj:.  (Mass.)  429 ;   Prescott  v.  Brown,  23  Me.  305,  39  Am.  Dec.  623. 

2T  Vreeland's  Ex'rs  v.  Ryno's  Ex'r,  26  N.  J.  Eq.  160;  Russell  v.  Brooks,  7 
Pick.  (Mass.)  65:  Armstrong  v.  Armstrong,  32  Miss.  279;  Turtle  v.  Muncy,  2 
J.  J.  Marsh.  (Ky.)  82. 

28  2  Bl.  Comm.  436. 

28  Tipping  V.  Tipping,  1  P.  Wms.  730;   Schouler,  Husb.  &  W.  §  431. 

80  Howard  v.  Menifee,  5  Ark.  668. 


96       RIGHTS  IN  PROPERTY  AS  AFFECTED  BY  COVERTURE.    (Ch.  3 

ture,  and  dies  before  his  wife  or  is  divorced,  they  remain  her  prop- 
erty, and  pass  to  her  representatives.'^  If  she  dies  first,  and  before 
they  have  been  reduced  to  possession,  they  pass  to  her  representa- 
tives.''^  If  they  are  reduced  to  possession  during  coverture,  they  be- 
come, in  most  cases,  absolutely  his.''  The  rule  applies  to  choses  in 
action  owned  by  the  wife  at  the  time  of  the  marriage,  as  well  as  to 
those  acquired  during  coverture.'* 

What  are  Choses  in  Action. 

A  chose  in  action  has  been  defined  as  a  right  to  be  asserted  by 
action  at  law.  But  the  term  may  include  a  right  to  be  asserted  in 
equity,"*  It  includes  all  claims  arising  from  contract,  duty,  or  wrong, 
to  enforce  which  resort  may  be  had  either  to  an  action  at  law  or 
to'  a  suit  in  equity.'*  The  term  has  never  been  satisfactorily  de- 
fined by  the  courts;    but   since   all   personalty   is   either  in  posses- 


31  Ck).  LItt.  351b;    2  Kent  Cortun.  135;    Richards  v.  Richards,  2  Barn.  & 
Adol.  447;    Langham  v.   Nenny,  3  Ves.  467;    Scawen  v.  Blunt,  7  Ves.  294 
Wells  V.  Tyler,  25  N.  H.  340;    Tritt's  Adm'r  v.  Colwell's  Adm'r,  31  Pa.  228 
Legg  V.  Legg,  8  Mass.  99 ;   Needles  v.  Needles,  7  Ohio  St.  432,  70  Am.  Dec.  85 
Burleigh  v.  Coffin,  22  N.  H.  118,  53  Am.  Dec.  236;    In  re  Kintzinger's  Estate.  2 
Ashm.  (Pa.)  455;   Poindexter  v.  Blackburn,  36  N.  C.  286;    Keagy  v.  Trout,  85 
Va.  390,  7  S.  E.  329.     In  another  place  it  will  be  seen  that  by  statute,  from 
a  very  early  period,  the  husband  has  been  entitled  to  administer  on  his  wife's 
estate,  and  to  recover  the  same  for  his  own  use,  acting  as  administrator,  sub- 
ject, however,  to  the  payment  of  her  debts  contracted  before  the  marriage. 
In  effect,  therefore,   he  does  acquire  the  right  to  his  wife's  choses  in  ac- 
tion, though  not  reduced  to  possession  in  her  lifetime;   but  he  takes  the  bene- 
fit of  them  burdened  with  liability  for  her  debts  dum  sola.     Post.  p.  138. 

82  Fleet  V.  Perrins.  L.  R.  3  Q.  B.  536;  Walker's  Adm'r  v.  Walker's  Adm'r, 
41  Ala.  353;  Needles  v.  Needles,  7  Ohio  St.  432,  70  Am.  Dec.  85;  Burleigh  v. 
Coffin.  22  N.  H.  118,  53  Am.  Dec.  236;  Tritt's  Adm'r  v.  Colwell's  Adm'r,  31 
Pa.  228. 

33  2  Kent.  Comm.  135;  Little  v.  Marsh,  37  N.  C.  18;  Tritt's  Adm'r  v.  Col- 
well's Adm'r,  31  Pa.  228.  Of  course,  they  then  become  personalty  in  posses- 
sion, and  subject  to  the  rules  laid  down  in  the  preceding  section.  Ante,  p. 
92.  In  case  of  an  infant  husband,  the  rule  is  the  same,  though  he  may  die 
before  reaching  majority.    Ware  v.  Ware's  Adm'r,  28  Grat.  (Va.)  670. 

34  Bond  V.  Conway,  11  Md.  512;  Wilder  v.  Aldrich,  2  R.  I.  518;  Lenderman 
V.  Talley,  1  Houst  (Del.)  523;  Hayward  v.  Hayward,  20  Pick.  (Mass.)  517. 
See,  also,  Arnold  v.  Limeburger,  122  Ga.  72,  49  S.  E.  812.  As  to  the  effect  of 
modern  statutes,  see  Johnson  v.  Johnson's  Committee,  122  Ky.  13,  90  S.  W. 
964,  121  Am.  St.  Rep.  449. 

8  5  Note  57,  infra-.  8«  Schouler,  Husb.  &  W.  §  153. 


§§  50-61)  wife's  choses  in  action.  97 

sion  or  a  chose  in  action,  there  is  generally  little  difficulty  in  deter- 
mining, in  any  particular  case,  whether  the  personalty  in  question  is 
a  chose  in  action.  Stocks  and  bonds,'''  bills  of  exchange  and  promis- 
sory notes,'^  and  other  debts  owing  to  the  wife,'®  claims  for  dam- 
ages for  personal  injuries,  slander,  or  other  torts  against  the  wife,*" 
checks  and  certificates  of  deposit,*^  are  all  choses  in  action  within 
this  rule.  Though  there  is  some  authority  to  the  contrary,*^  by  the 
great  weight  of  opinion  legacies  and  distributive  shares  are  also  with- 
in the  rule.*' 

Reduction  to  Possession. 

To  vest  his  wife's  choses  in  action  in  himself  by  reduction  to  pos- 
session, the  husband  must  exert  some  positive  act  of  dominion  over 
them,  with  the  intention  of  converting  them  to  his  own  use.**  The 
intention  to  take  possession,  without  actually  doing  so,  is  not  suffi- 
cient.**^    Nor  is  the  actual  taking  possession  sufficient,  if  there  is  no 


8  7  Brown  v.  Bokee,  53  Md.  155;  Slaymaker  v.  Bank,  10  Pa.  373;  Wells 
V.  Tyler,  25  N.  H.  340. 

3  8  Gaters  v.  Madeley,  6  Mees.  &  W.  423;  Hayward  v.  Hayward,  20  Pick. 
(Mass.)  517;  Phelps  v.  Phelps,  Id.  556;  Lenderman  v.  Talley,  1  Houst,  (Del.) 
523. 

3  8  Clapp  V.  Inhabitants,  10  Pick.  (Mass.)  463. 
*o  Anderson  v.  Anderson,  11  Bush  (Ky.)  327. 
41  Rodgers  v.  Bank,  69  Mo.  560. 

*2  Holbrook  v.  Waters,  19  Pick.  (Mass.)  354;  Wheeler  v.  Bowen,  20  Pick. 
(Mass.)  563;  Albee  v.  Carpenter,  12  Cush.  (Mass.)  382;  Griswold  v.  Penni- 
man,  2  Conn.  564. 

4  3  Schouler,  Husb.  &  W.  §  153;  2  Kent,  Comm.  135;  Garforth  v.  Bradley,  2 
Ves.  Sr.  675 ;  Oarr  v.  Taylor,  10  Ves.  574 ;  Arnold  v.  Limeburger,  122  Ga.  72, 
49  S.  E.  812;  Tucker  v.  Gordon,  5  N.  H.  564;  Schuyler  v.  Hoyle,  5  Johns.  Ch. 
(N.  Y.)  190;  Howard  v.  Bryant,  9  Gray  (Mass.)  239;  Probate  Court  v.  Niles, 
32  Vt.  775;  Smilie's  Estate,  22  Pa.  130;  Wheeler  v.  Moore,  13  N.  H.  478;  Cur- 
ry V.  Fulkinson's  Ex'rs,  14  Ohio,  100 ;  Keagy  v.  Trout,  85  Va.  390,  7  S.  E.  329 ; 
Jones  V.  Daveuport,  44  N.  J.  Eq.  33,  13  Atl.  652 ;   Hooper  v.  Howell,  50  Ga.  165. 

4  4  Blount  V.  Bestland,  5  Ves.  515 ;  Baker  v.  Hall,  12  Ves,  497 ;  Parker  v. 
Lechmere,  12  Ch.  Div.  256 ;  In  re  Hinds'  Estate,  5  Whart.  (Pa.)  138,  34  Am. 
Dec.  542;  Mayfield  v.  Clifton,  3  Stew.  (Ala.)  375;  Standeford  v.  Devol,  21  Ind. 
404,  83  Am.  Dec.  351;  Needles  v.  Needles,  7  Ohio  St.  432,  70  Am.  Dec.  85; 
Brown  v.  Bokee,  53  Md.  155;  Cox  v.  Scott,  9  Baxt  (Tenn.)  305;  George  v. 
Goldsby,  23  Ala.  326;  Sale  v.  Saunders,  24  Miss.  24,  57  Am.  Dec.  157;  Moy- 
er's  Appeal,  77  Pa.  482;  Grebill's  Appeal,  87  Pa.  105;  Williams  v.  Sloan,  75 
Va.  137 ;   Arrington  v.  Yarbrough,  54  N.  C.  72 ;    Hooper  v.  Howell,  50  Ga.  165. 

*B  Blount  V.  Bestland,  5  Ves.  515;   1  Bright,  Husb.  &  W.  36. 
TIFF.P.&  D.Rel.(2d  Ed.)— 7 


98  RIGHTS   IN  PROPERTY  AS  AFFECTED   BY  COVERTURE.  (Ch.  3 

intent  to  convert  to  his  own  use.*'  Taking  possession,  however,  is,  in 
the  absence  of  evidence  to  the  contrary,  presumed  to  be  with  such 
an  intent,   and  a  reduction  to  possession.*^ 

"That  reduction  into  possession  which  made  the  chose  absolutely, 
as  well  as  potentially,  the  husband's,  was  a  reduction  into  possession 
not  of  the  thing,  but  of  the  title  to  it."  *^  As  to  what  acts  are  to  be 
deemed  a  sufficient  reduction  to  possession  of  his  wife's  chose  in 
action  by  a  husband,  Chancellor  Kent  says :  *"  "The  rule  is  that,  if 
the  husband  appoints  an  attorney  to  receive  the  money,  and  he  re- 
ceives it ;  ^°  or  if  he  mortgages  the  wife's  choses  in  action,  or  assigns 
them  without  reservation,  for  a  valuable  consideration; ''^  or  if  he 
recovers  her  debt  by  a  suit  in  his  own  name;  or  if  he  releases  the 
debt  by  taking  a  new  security  in  his  own  name — in  all  these  cases, 
upon  his  death,  the  right  of  survivorship  in  the  wife  to  the  property 
ceases.  And  if  the  husband  obtains  a  judgment  or  decree  as  to  money 
to  which  he  was  entitled  in  right  of  his  wife,  and  the  suit  was  in  his 
own  name  alone,  the  property  vests  in  him  by  the  recovery,  and  is  so 
changed  as  to  take  away  the  right  of  survivorship  in  the  wife.  If  the 
suit  was  in  their  joint  names,  and  he  died  before  he  had  reduced  the 
property  to  possession,  the  wife,  as  survivor,  would  take  the  benefit 


4  8  Baker  v.  Hall,  12  Ves.  497;  Wall  v.  Tomlinson,  16  Ves.  413;  In  re 
Hinds'  Estate,  5  Whart.  (Pa.)  138,  34  Am.  Dec.  542;  Mayfleld  v.  Clifton,  3 
Stew.  (Ala.)  375;  Hall  v.  Young,  37  N.  H.  134;  Standeford  v.  Devol,  21  Ind. 
404,  83  Am.  Dec.  351;  Moyer's  Appeal,  77  Pa.  482;  Miller  v.  Aram,  37  Wis. 
142 ;  Barber  v.  Slade,  30  Vt.  191,  73  Am.  Dec.  299 ;  Barron  v.  Barron,  24  Vt. 
375. 

4  7  Johnston's  Adm'rs  v.  Johnston,  1  Grant,  Gas.  (Pa.)  468;  In  re  Hinds' 
Estate,  5  Whart.  (Pa.)  138,  34  Am.  Dec.  542. 

4  8  Tritt  V.  Col  well,  31  Pa.  228. 

48  2  Kent,  Comm.  137. 

60  As  to  receipt  by  attorney  or  agent,  see  Turton  v.  Turton,  6  Md.  375; 
Alexander  v.  Crittenden,  4  Allen  (Mass.)  342.  The  agent  or  attorney  must 
be  acting  for  the  husband,  and  not  for  the  wife,  nor  for  the  husband  and 
wife.    See  Fleet  v.  Perrins,  L.  R.  3  Q.  B.  53G ;   Hill  v.  Hunt,  9  Gray  (Mass.)  66. 

51  Carteret  v.  Paschal,  3  P.  Wms.  197;  Bates  v.  Dandy,  2  Atk.  206;  Jew- 
son  V.  Moulson,  Id.  417 ;  Schuyler  v.  Hoyle,  5  Johns.  Ch.  (N.  Y.)  196 ;  Kenny 
V.  Udall,  5  Johns.  Ch.  (N.  Y.)  464 ;  Udell  v.  Kenney,  3  Cow.  (N.  Y.)  590;  Lowry 
V.  Houston,  3  How.  (Miss.)  394;  Case  of  Siter,  4  Rawle  (Pa.)  468;  Tritt'a 
Adm'r  v.  Colwell's  Adm'r,  31  Pa.  228.  It  is  otherwise  where  there  is  no  con- 
sideration for  the  assignment.  Burnett  v.  Kinnaston,  2  Vern.  401 ;  Hartman  v. 
Dowdel,  1  Rawle  (Pa.)  279.  Indorsement  and  transfer  of  bill  or  note.  Mason 
V.  Morgan,  2  Adol.  &  E.  30;   Evans  v.  Secrest,  3  Ind.  545. 


§§  50-51)  wife's  choses  in  action.  99 

of  recovery."  *  *  *  If  he  takes  possession  in  the  character  of 
trustee,  and  not  of  husband,  it  is  not  such  a  possession  as  will  bar  the 
right  of  the  wife  to  the  property  if  she  survives  him.  The  property 
must  come  under  the  actual  control  and  possession  of  the  husband, 
quasi  husband,  or  the  wife  will  take,  as  survivor,  instead  of  the  per- 
sonal representatives  of  the  husband." 

Assignees  in  bankruptcy  of  the  husband  possess  the  same  rights  as 
the  husband  to  reduce  the  wife's  choses  in  action  to  possession,  but 
they  possess  no  greater  rights;  and,  if  the  husband  dies  before  they 
have  reduced  them  to  possession,  they  survive  to  the  wife.^^ 

Reduction  to  possession  of  a  part  of  a  claim  due  the  wife  is  not 
a  reduction  of  the  whole,  so  as  to  bar  the  wife's  right,  as  survivor,  to 
the  residue.  Collection  of  interest,  for  instance,  is  not  a  reduction  of  the 
principal  to  possession.^*  The  same  is  true  of  the  receipt  of  a  partial 
payment  on  the  principal, "^^  the  receipt  of  dividends  on  stock,^''  etc. 

Wife's  Equity  to  a  Settlement. 

Whenever  it  was  necessary  for  the  husband,  or  one  claiming  in  his 
right,  as  an  assignee,  for  instance,  to  ask  the  aid  of  a  court  of  equity 
to  reduce  the  wife's  personalty  to  possession,  the  court,  in  pursuance 
of  the  principle  that  he  who  seeks  equity  must  do  equity,  required  of 
the  husband  that  he  make  a  suitable  settlement  for  the  maintenance 
of  the  wife  and  children,  unless  they  were  already  sufficiently  pro- 
vided for.  This  right  of  the  wife  is  called  the  wife's  equity  to  a  set- 
tlement, or  the  wife's  equity.^''  There  is  much  doubt  and  conflict  as 
to  the  circumstances  under  which  a  court  of  equity  can  thus  interfere 


62  Hilliard  v.  Hambridge,  Aleyn,  36 ;  McDowl  v.  Charles,  6  Johns.  Ch.  (N. 
Y.)  132 ;   Searing  v.  Searing,  9  Paige  (N.  Y.)  2S3. 

53  2  Kent,  Comm.  138;  Mitford  v.  Mitford,  9  Ves.  87;  Van  Epps  v.  Van 
Deusen,  4  Paige  (N.  Y.)  64,  25  Am.  Dec.  516;  Outcalt  v.  Van  Winlile,  2  N. 
J.  Eq.  516. 

6  4  Howman  v.  Corie,  2  Vern.  190;  Stanwood  v.  Stanwood,  17  Mass.  57; 
Dunn  V.  Sargent,  101  Mass.  336. 

66  Nash  V.  Nash,  2  Madd.  133. 

6  6  Dunn  V.  Sargent,  101  Mass.  336. 

6T2  Kent,  Comm.  135-143;  Story,  Eq.  Jur.  §  1402  et  seq.;  Kenny  v.  Udall, 
5  Johns.  Ch.  (N.  Y.)  4M;  Udfell  v.  Kenney,  3  Cow.  (N.  Y.)  500;  Parsons  v. 
Parsons,  9  N.  H.  309,  32  Am.  Dec.  362  (an  elaborate  examination  into  the  his- 
tory apd  doctrine  of  the  wife's  equity) ;  Howard  v.  Moffatt,  2  Johns.  Cb.  (N.  Y.) 
206;  Duvall  v.  Banl£,  4  Cill  &  J.  (Md.)  282,  23  Am.  Dec.  558;  Whitesides 
V.  Dorris,  7  Dana  (Ky.)  106;  Perryclear  v.  Jacobs,  2  Hill,  Eq.  (S.  C.)  509; 
Dearin  v.  Fitzpatrick,  Meigs  (Tenn.)  551. 


100  RIGHTS  IN  PROPERTY   AS  AFFECTED   BY  COVERTURE.  (Ch.  3 

to  compel  a  provision  for  the  wife  out  of  her  property.  Story  says : 
"The  principal,  if  not  the  sole,  cases,  in  which  courts  of  equity  now 
interfere  to  secure  the  wife  her  equity  to  a  settlement  are:  First, 
where  the  husband  seeks  aid  or  relief  in  regard  to  her  property ;  sec- 
ondly, where  he  makes  an  assignment  of  her  equitable  interests; 
thirdly,  where  she  seeks  the  like  relief  as  plaintiff  against  her  hus- 
band or  his  assignees  in  regard  to  her  equitable  interests."  "*  The 
last  class  includes  the  first  two  in  effect,  for,  if  she  may  proceed 
against  him,  or  his  assignees,  in  all  cases,  it  covers  the  whole 
ground. "*'  While  there  are  some  cases  which  seem  to  limit  the  power 
of  courts  of  equity,  in  enforcing  the  wife's  equity,  to  cases  in  which 
the  husband  or  his  assignee  is  seeking  the  aid  of  the  court  to  reduce 
the  wife's  property  to  possession,  the  great  weight  of  authority  is 
against  any  such  limitation,  and  in  favor  of  the  statement  which  is 
above  quoted  from  Story.  In  an  early  New  York  case  it  was  said: 
"If  the  husband  can  lay  hold  of  the  property  without  the  aid  of  a 
court  of  equity,  he  may  do  it ;  the  court  has  not  the  means  of  enfor- 
cing a  settlement  by  interfering  with  his  remedies  at  law."  "°  And 
there  are  other  statements  to  the  same  effect.*^  In  a  later  New  York 
case,  however.  Chancellor  Kent  said:  "It  is  now  understood  to  be 
settled  that  the  wife's  equity  attaches  upon  her  personal  property 
when  it  is  subject  to  the  jurisdiction  of  the  court,  and  is  the  object 
of  the  suit,  into  whosesoever's  hands  it  may  have  come,  or  in  whatever 
manner  it  may  have  been  transferred.  The  same  rule  applies  whether 
the  application  be  by  the  husband  or  his  representatives  or  assignees 
to  obtain  possession  of  the  property,  or  whether  it  be  by  the  wife  or 
her  trustee,  or  by  any  person  partaking  of  that  character,  praying  for 
that  provision  out  of  that  property."  *^  This  broader  jurisdiction  of 
courts  to  enforce  the  wife's  equity  is  amply  supported  by  authority.*' 
The  jurisdiction  extends  to  restraining  the  husband,  or  one  claim- 
ing in  his  right,  as  assignee  or  otherwise,  from  obtaining  possession 
of  the  wife's  property  by  an  action  at  law,  and  thereby  defeating  her 


68  2  story,  Eq.  633. 

6  9  Parsons  v.  Parsons,  9  N.  H.  309,  32  Am.  Dec.  362. 

6  0  Howard  v.  Moffatt,  2  Johns.  Ch.  (N.  Y.)  206. 

81  See  Bryan  v.  Bryan,  16  N.  C.  47. 

62  Kenny  v.  Udall,  5  Johns.  (N.  Y.)  464;   Udell  v.  Kenney,  3  Cow.  (N.  Y.)  .oOO. 

68  2  Kent,  Comm.  139-142;  Dumond  v.  Magee,  4  Johns.  Ch.  (N.  Y.)  318; 
Dearin  v.  Fltzpatrick,  Meigs  (Tenn.)  551;  Salter  v.  Salter,  80  Ga.  178,  4 
S.  E.  391,  12  Am.  St  Rep.  249. 


g    52)  ADMINISTRATION    OF   WIFE'S    ESTATE.  101 

equity  to  a  settlement.  As  was  said  by  Chancellor  Walworth:  "If 
the  wife  is  entitled  to  such  an  equity  upon  a  bill  filed  by  a  husband 
or  his  assignee,  or  by  a  third  person,  as  all  the  cases  upon  this  subject 
admit,  I  see  no  valid  objection  in  principle  against  granting  her  sim- 
ilar relief  where  the  husband,  or  the  general  assignee  in  bankruptcy,  is 
endeavoring  to  deprive  her  of  that  equity  by  an  unconscientious  pro- 
ceeding at  law."  "  It  is  well  settled  that  the  wife's  equity  may  be  en- 
forced against  assignees  of  the  husband.'" 

This  protection  to  the  wife  by  enforcing  a  settlement  out  of  her 
property  cannot  be  afforded  in  some  of  the  states,  either  because 
there  is  no  court  of  chancery,  or  because  the  court  upon  which  equity 
jurisdiction  has  been  conferred  is  limited  in  its  powers,  so  that  it 
cannot  exercise  full  equity  jurisdiction.®® 

A  wife  may  waive  her  equity  to  a  settlement,  if  she  does  so  apart 
from  her  husband,  and  under  the  direction  of  the  court.'^  And  she 
loses  the  right  thereto  if  she  is  guilty  of  adultery.®^  No  allowance 
will  be  made  to  her  out  of  her  property,  if  her  husband  has  made 
an  adequate  settlement  upon  her.®* 


ADMINISTRATION    OF   "WIFE'S   ESTATE. 

52.  Under  very  early  statutes,  and  perhaps  even  at  common  laiir,  the 
husband  is  entitled  to  administer  on  his  iv^ife's  estate.  Be 
may,  as  administrator,  recover  her  choses  in  action  for  his 
o-wn.  benefit;  but  he  takes  subject  to  her  debts  contracted  dum 
sola. 

As  has  just  been  shown,  if  the  wife  dies,  leaving  her  husband  sur- 
viving her,  before  he  has  reduced  her  chose  in  action  to  possession, 

«*  Van  Bpps  v.  Van  Deusen,  4  Paige  (N.  Y.)  74,  25  Am.  Dec.  516.  For  cases 
In  which  the  court  has  interfered  by  restraining  the  husband  or  his  assignee 
from  proceeding  in  a  court  of  law  or  probate  to  reduce  a  debt  or  legacy  due 
the  wife  to  his  possession,  etc.,  see  2  Kent,  Comm.  139-142;  Fry  v.  Fry,  7  Paige 
(N.  Y.)  462 ;   Dumond  v.  Magee,  4  Johns.  Ch.  (N.  Y.)  318. 

65  2  Story,  Eq.  Jur.  §  1412;    Moore  v.  Moore,  14  B.  Mon.  (Ky.)  259. 

66  Yohe  V.  Barnet,  1  Bin.  (Pa.)  358;  In  re  Miller's  Estate,  1  Ashm.  (Pa.) 
323 ;  Parsons  v.  Parsons,  9  N.  H.  309,  32  Am.  Dec.  362 ;  Allen  v.  Allen,  41  N. 
C.  293. 

67  Schouler,  Husb.  &  W.  §  162;   Coppedge  v.  Threadgill,  3  Sneed  (Tenn.)  577. 
6  8  Ball  V.  Montgomery,  2  Ves.  Jr.  191;    Fry  v.  Fry,  7  Paige  (N.  Y.)  462; 

Carter  v.  Carter,  14  Suu-des  &  M.  (Miss.)  59. 
69  2  Kent,  Comm.  142,  143. 


102  RIGHTS  IN   PROPERTY  AS  AFFECTED   BY   COVERTURE.  (Ch.  3 

it  goes  to  her  personal  representative.'''*  The  husband,  therefore,  does 
not  take  it  strictly  as  survivor.  Because  of  another  doctrine,  how- 
ever, he  does  acquire  it  in  eflFect.  He  is  entitled  to  recover  it  to  his 
own  use,  by  acting  as  her  administrator.  Her  personal  property  in 
possession  goes  to  him,  as  has  been  seen,  as  survivor  strictly,  and  not 
as  her  administrator,  for  such  property  vests  in  him  absolutely.''^ 
Her  choses  in  action  not  reduced  to  possession  by  him  before  her 
death  he  must  recover  as  her  administrator.  When  he  has  so  recov- 
ered them,  he  is  entitled  to  take  them  for  his  own  use,  jure  mariti.''' 
It  has  been  said  that  this  right  probably  existed  at  common  law.''' 
At  any  rate,  it  was  conferred  by  statute  at  an  early  period.  It  was 
given  in  England  by  the  statute  of  distributions  of  22  &  23  Car.  II. 
and  the  twenty-fifth  section  of  the  statute  of  29  Car.  II.  c.  3,  in  ex- 
planation thereof;  and  these  statutes  were  substantially  re-enacted  in 
this  country.''* 

This  right  of  the  husband  extends  to  choses  in  action  which  were 
settled  to  the  separate  use  of  the  wife,  unless  previously  disposed  of 
by  her,  for  her  separate  estate  lasts  only  during  coverture.'"  The 
right  is  subject  to  this  qualification:  that  the  estate  of  the  wife  is 
liable  to  the  payment  of  her  debts  contracted  dum  sola,  and  the  hus- 
band takes  subject  to  this  liability.^' 


TO  Ante,  p.  95.  ti  Ante,  p.  92. 

72  2  Bl.  Comm.  515;  2  Kent,  CJomm.  136;  Watt  v.  Watt,  3  Ves.  244;  Gar- 
forth  V.  Bradley,  2  Ves.  Sr.  675 ;  Richards  v.  Richards,  2  Barn.  &  Adol.  447 ; 
Whitaker  v.  Whitaker,  6  Johns.  (N.  Y.)  112;  Hoskins  v.  Miller,  13  N.  C.  360; 
Humphrey  v.  Bullen,  1  Atk.  458;  Squib  v.  Wyn,  1  P.  Wms.  380;  Judge  of 
Probate  v.  Chamberlain,  3  N.  H.  129. 

73  2  Bl.  CJomm.  515,  516;   Hoskins  v.  Miller,  13  N.  C  360. 

7*  "The  foundation  of  this  claim  has  been  variously  stated.  By  some  it 
is  said  to  be  derived  from  St.  31  Edw.  III.,  on  the  ground  of  the  husband's 
being  'the  next  and  most  lawful  friend'  of  his  wife,  while  there  are  other 
authorities  which  insist  that  the  husband  is  entitled  at  common  law,  jure 
mariti,  and  independently  of  the  statute.  But  the  right,  however  founded,  is 
now  unquestionable,  and  Is  expressly  confirmed  by  St  29  Car.  II.  c.  3." 
1  Williams,  Ex'rs,  410.  See  Judge  of  Probate  v.  Chamberlain,  3  N.  H.  129. 
Kent,  however,  bases  the  right  on  the  statutes  of  22  &  23  Car.  II.,  and  29  Car. 
II.  c.  3,  §  25,  as  stated  in  the  text 

76  2  Macq.  Husb.  &  W.  288;  Schouler,  Husb.  &  W.  §  196;  Proudley  v.  Field- 
er, 2  Mylne  &  K.  57 ;   Ransom  v.  Nichols,  22  N,  Y.  110. 

76  2  Kent  Comm.  136;  Heard  v.  Stamford,  3  P.  Wms.  409;  Donnington  v. 
Mitchell,  2  N.  J.  Eq.  243. 


§  54)  wife's  estates  of  inheritance.  103 

In  many  of  the  states  this  doctrine  has  been  abolished  by  statute, 
and  the  husband,  if  he  administers  on  his  wife's  estate,  must  account 
He  cannot  recover  for  his  own  use.^' 


WIFE'S  CHATTELS  REAL. 

53.  The  husband  has  the  enjoyment  of  his  wife's  chattels  real— leases 

and  terms  for  years— during  his  life,  with  the  power  to  dis- 
pose of  and  incumber  them,  and  they  are  liable  for  his  debts. 
If  undisposed  of  on  his  death,  they  go  to  the  wife.  On  the 
wife's  death  they  go  to  him. 

Leases  and  terms' for  years  are  known  as  "chattels  real."  The  hus- 
band is  entitled  to  the  enjoyment  of  his  wife's  chattels  real,  and  may 
sell,  assign,  mortgage,  or  otherwise  dispose  of  them  during  his  life,''* 
and  they  are  liable  for  his  debts.''"  He  cannot  dispose  of  them  by 
will  so  as  to  debar  a  surviving  wife,  though  his  disposition  by  will  is 
valid  if  his  wife  is  not  the  survivor.*"  The  wife's  chattels  real  which 
have  not  been  appropriated  by  the  husband  during  his  life,  or  taken 
by  his  creditors,  belong  to  the  wife  in  her  own  right,  if  she  is  the 
survivor,  like  her  choses  in  action,  and  belong  absolutely  to  the  hus- 
band, if  he  is  the  survivor,  like  her  personalty  in  possession.*^ 

WIFE'S  ESTATES  OF  INHERITANCE. 

54.  The  husband  acquires  by  marriage  the  usufruct  of  his  wife's  es- 

tates  of   inheritance 

(a)  During  coverture,  and 

(b)  When  there  is  issue   of  the  m.arriage  born  alive,  then  for  life, 

as  tenant  by  the  curtesy. 

Where  at  the  time  of  marriage  or  during  coverture  a  woman  is 
seised  of  an  estate  of  inheritance  in  land^  the  husband  is  entitled  to  its 


7  7  Curry  v.  Fulkinson's  Ex'rs,  14  Ohio,  100;  Baldwin  v.  Carter,  17  Conn. 
201,  42  Am.  Dec.  735.  And  see  Leol^ey  v.  Maupin,  10  Mo.  368,  47  Am.  Dec.  120. 
See,  also,  post,  p.  149. 

78  Co.  Litt.  3Gb;  2  Kent,  Comm.  135;  Grute  v.  Locroft,  Cro.  Eliz.  287;  Jack- 
son V.  McConnell,  19  Wend.  (N.  Y.)  175,  32  Am.  Dec.  439. 

7  9  2  Kent,  Comm.  135  ;   Miles  v.  Williams,  1  P.  Wms.  258. 

80  Co.  Litt.  351a;  2  Kent,  Comm.  135;  Garforth  v.  Bradley,  2  Ves.  Sr.  675; 
Schuyler  v.  Hoyle,  5  Johns.  Ch.  (N.  Y.)  196 ;  Parsons  v.  Parsons,  9  N.  H.  309, 
32  Am.  Dec.  387. 

81  Co.  Litt.  351a;  2  Kent,  Comm.  135;  Doe  v.  Polgrean,  1  H.  Bl.  535. 


104  RIGHTS   IN   PROPERTY   AS   AFFECTED   BY   COVERTURE.  (Ch.  3 

usufruct.  His  estate  lasts  at  least  during  coverture;  and  in  case 
there  is  issue  of  the  marriage  born  alive  capable  of  inheriting  her 
estate,  his  estate  continues  as  tenant  by  the  curtesy  initiate  during 
the  wife's  life,  and  as  tenant  by  the  curtesy  consummate,  after  her 
death,  for  the  remainder  of  his  life.**  The  husband's  estate  extends 
only  to  the  use  of  the  land.  He  is  entitled  to  the  rents,  issues,  and 
profits,*'  and  upon  his  death  the  emblements  growing  upon  the  land 
go  to  his  representatives.** 

He  may  alienate  the  land,  so  as  to  convey  his  interest.*"  At  com- 
mon law,  alienation  by  feoffment  of  a  greater  estate  than  that  to 
which  he  was  entitled  forfeited  his  estate ;  *'    but  this  doctrine  is  not 


82  Co.  Litt.  351a;  2  Bl.  Comm.  126;  2  Kent,  Comm.  130;  Beale  v.  Knowles, 
45  Me.  479;  Breeding  v.  Davis,  77  Va.  639,  46  Am.  Rep.  740;  Butterfield  v. 
Beall,  3  Ind.  203;  Junction  R.  Co.  v.  Harris,  9  Ind.  184,  68  Am.  Dec.  618 ;  Van 
Duzer  v.  Van  Duzer,  6  Paige  (N.  Y.)  366,  31  Am.  Dec.  257 ;  Litchfield  v.  Cud- 
wortti,  15  Pick.  (Mass.)  23;  Thomas  v.  Sheppard,  2  McOord,  Eq.  (S.  G.)  36, 
16  Am.  Dec.  632;  Abies  v.  Abies,  86  Tenn.  333,  9  S.  W.  692;  Clarke's  Ap- 
peal, 79  Pa.  376;  Rogers  v.  Brooks,  30  Ark.  612;  Laidley  v.  Land  Co.,  30  W. 
Va.  505,  4  S.  E.  705 ;  Arnold  v.  Limeburger,  122  Ga.  72,  49  S.  E.  812 ;  Wine- 
stine  V.  Ziglatzkl-Marks  Co.,  77  Conn.  404,  59  Atl.  496.  In  Van  Duzer  v.  Van 
Duzer,  supra,  it  was  held  that  the  court  cannot,  even  in  equity,  interfere  with 
the  husband's  rights  as  tenant  by  the  curtesy  initiate,  even  where  the  hus- 
band is  improvident,  and  to  allow  him  to  dispose  of  his  interest,  or  to  allow  it 
to  be  taken  by  his  creditors,  would  expose  the  wife  and  children  to  beggary. 
There  are  four  requisites  of  an  estate  by  the  curtesy,  namely:  (1)  Marriage, 
(2)  seisin  of  the  wife,  (3)  birth  of  issue  alive,  and  (4)  death  of  the  wife.  Dur- 
ing the  wife's  life,  after  issue  born  alive,  the  husband  is  said  to  be  tenant  by 
the  curtesy  initiate.  It  is  only  upon  her  death  that  he  becomes  tenant  by  the 
curtesy  consummate.  Breeding  v.  Davis,  77  Va.  639,  46  Am.  Rep.  740.  The 
estate  of  the  husband  as  tenant  by  the  curtesy  has  been  abolished  in  some 
states,  but  not  in  all.  See,  for  example,  Code  Civ.  Proc.  S.  C.  1902,  §  2670. 
As  to  the  effect  of  the  married  women's  acts,  see  Breeding  v.  Davis,  supra. 

83  Co.  Litt.  29a;  2  Kent,  Comm.  130;  Clapp  v.  Inhabitants,  10  Pick.  (Mass.) 
463;    Jones  v.  Patterson,  11  Barb.  (N.  Y.)  572. 

8*2  Kent,  Comm.  131;  Reeve,  Dom.  Rel.  31,  32;  Weems  v.  Bryan,  21  Ala. 
302;  Spencer  v.  Lewis,  1  lloust.  (Del.)  223.  The  husband's  tenant  has  the 
same  right  upon  the  husband's  death.  Rowney's  Case,  2  Vem.  322 ;  Gould  v. 
Webster,  1  Tyler  (Vt.)  409. 

86  2  Kent,  Comm.  133;  Trask  v.  Patterson,  29  Me.  502;  Dejarnatte  v.  Allen, 
5  Grat  (Va.)  499 ;    Miller  v.  Shackleford,  3  Dana  (Ky.)  291. 

8  8  Co.  Litt.  251b,  252a;  2  Inst.  309;  4  Kent,  Comm.  83;  1  Washb.  Real 
Prop.  142;    French  v.  Rollins,  21  Me.  372. 


§  54)  wife's  estates  of  inheritance.  105 

now  recognized  to  any  extent,  if  at  all.  His  deed  conveys  whatever 
interest  he  has.^''  He  cannot  in  any  way  alienate  the  land  so  as  to 
cut  off  the  rights  of  the  wife  and  her  heirs  on  the  termination  of  his 
estate  by  his  death  before  the  wife  or  by  divorce.^'  He  may  also  in- 
cumber the  property,  but  only  to  the  extent  of  his  estate  therein.  On 
his  death  his  wife  or  her  heirs  take  clear  from  any  incumbrance  made 
by  him.®"  The  husband's  interest  in  his  wife's  realty  is  liable  for  his 
debts,  and  may  be  taken  and  sold  on  execution.®**  But  any  such  sale 
is  subject  to  the  rights  of  the  wife  or  her  heirs  on  the  husband's 
death  or  a  divorce.'^ 

For  any  injury  to  the  profits,  or  to  the  mere  possession,  of  the  land, 
the  husband  may  sue  in  his  own  name.®^  But,  as  his  estate  is  merely 
usufructuary,  his  wife  must  join  in  a  suit  for  an  injury  to  the  in- 
heritance.®^ He  cannot  himself  impair  the  inheritance,  as  by  com- 
mitting waste.  If  he  does  so,  the  coverture  would  prevent  the  wife 
from  suing  him  at  common  law  to  recover  damages ;  ®*   but  he  would 

8T  Miller  v.  Sha(?kleford,  3  Dana  (Ky.)  291 ;  Meraman's  Heirs  v.  Caldwell's 
Heirs,  8  B.  Mon.  (Ky.)  32,  46  Am.  Dee.  537;  Flagg  v.  Bean,  25  N.  H.  49,  63; 
Dennett  v.  Dennett,  40  N.  H.  505;  Miller  v.  Miller,  Meigs  (Tenn.)  484,  33  Am. 
Dec.  157;  Butterfield  v.  Beall,  3  Ind.  203;  Munnerlyn  v.  Munnerlyn,  2  Brev. 
(S.  C.)  2 ;   McKee's  Lessee  v.  Pfout,  3  Dall.  (Pa.)  486,  1  L.  Ed.  690. 

88  Cases  cited  above,  and  Huff  v.  Price,  50  Mo.  228;  Barber  v.  Root,  10 
Mass.  260;    Jones  v.  Carter,  73  N.  C.  148. 

89  2  Kent,  Comm.  133;  Goodright  v.  Straphan,  1  Cowp.  201;  Drybn'ter  v. 
Bartholomew,  2  P.  Wms.  127 ;  Miller  v.  Shackleford,  3  Dana  (Ky.)  291;  Barber 
V.  Harris,  15  Wend.  (N.  T.)  615 ;  Kay  v.  Whittaker,  44  N.  Y.  565 ;  Boykin  v 
Rain,  28  AJa.  332,  65  Am.  Dec.  349. 

»o  2  Kent,  Comm.  133;  1  Washb.  Real  Prop.  141;  Van  Duzer  v.  Van  Duzer 
6  Paige  (N.  Y.)  366,  31  Am.  Dec.  257;  Litchfield  v.  Cudworth,  15  Pick 
(Mass.)  23. 

91  Mattocks  V.  Stearns,  9  Vt  326;  Canby's  Lessee  v.  Porter,  12  Ohio,  79 
■  Sale  V.  Saunders,  24  Miss.  24,  57  Am.  Dec.  157;  Babb  v.  Perley,  1  Me.  6; 
Barber  v.  Root,  10  Mass.  200. 

02  2  Kent,  Comm.  131 ;  Tallmadge  v.  Grannis,  20  Conn.  296 ;  Alexander  v. 
Hard,  64  N.  Y.  228. 

93  2  Kent,  Comm.  131 ;  Weller  v.  Baker,  2  Wils.  414,  423;  Thacher  v.  Phin- 
ney,  7  Allen  (Mass.)  146;  Illinois  Cent.  R.  Co.  v.  Grable,  46  111.  445;  Wyatt  v. 
Simpson,  8  W.  Va.  394. 

94  2  Kent,  Comm.  131;  1  Washb.  Real  Prop.  118.  She  could  sue  a  creditor 
of  the  husband,  who  has  taken  the  land  on  execution,  and  could  sue  the 
husbands  assignee  or  grantee.  Babb  v.  Perley,  1  Me.  6;  Mattocks  v.  Stearns, 
9  Vt  326. 


106  RIGHTS   IN  PROPERTY  AS  AFFECTED   BY  COVERTURE.  (Ch.  3 

be  liable  in  an  action  at  law  by  the  heir.®"     And  a  court  of  equity 
would  enjoin  him  in  a  suit  by  the  wife  for  that  purpose." 

Where  the  real  property  of  the  wife  is  sold  by  her  husband  and  her- 
self, and  converted  into  money  or  choses  in  action,  these  proceeds  do 
not  retain  the  character  of  realty,  but  become  personalty,  and  subject 
to  the  rules  governing  the  wife's  personalty  in  possession,  or  her 
choses  in  action,  according  to  the  character  of  the  proceeds.'^  This  is 
also  true  where  the  conversion  is  by  operation  of  law.®* 

WIFE'S  ESTATES   FOR   LIFE. 

55.  Tlie  husband,  in  right  of  his  xinLfe,  becomes  seised  of  her  life  es- 

tates, TO^hether  for  her  oxsm.  life  or  for  the  life  of  another. 

If  the  wife  at  the  time  of  her  marriage  has  an  estate  for  life,  or  for 
the  life  of  another  person,  the  husband  becomes  seised  of  such  an  es- 
tate in  right  of  his  wife,  and  is  entitled  to  the  profits.  On  the  death 
of  the  wife,  the  estate  for  her  own  life  ceases,  and,  of  course,  the 
husband  has  no  further  interest.  If  she  has  an  estate  for  the  life  of 
some  other  person,  who  survives  her,  the  husband  becomes  a  special 
occupant  of  the  land  during  the  life  of  such  other  person.  The  hus- 
band can  dispose  of  or  incumber  the  estate  to  the  extent  of  his  in- 
terest in  it.  His  representatives  take  as  emblements  the  crops  grow- 
ing at  his  death.®' 

PROPERTY  ACQUIRED  BY  WIFE  AS  SOLE  TRADER. 

56.  In  equity,  by  agreement  Tcirith  her  husband,  a  married  woman  may 

become  a  sole  trader,  and  carry  on  a  trade  or  business  for  her 
separate  use,  in  \phich  case  she  vrill  be  entitled,  in  equity,  to 
hold  the  stock  in  trade  and  profits  as  her  separate  property. 


9  6  It  seems  that  the  heir  cannot  sue  the  assignee  of  the  husband  for  waste, 
because  of  want  of  privity.  See  2  Kent,  Ck)mm.  131;  Wallier's  Case,  3  Colie, 
22;    Bates  v.  Shraeder,  13  John.  (N.  Y.)  260. 

»6  2  Kent,  Comm.  131 ;  1  Washb.  Real  Prop.  125 ;  Stroebe  v.  Fehl,  22  Wis. 
337;   Porch  v.  Fries,  18  N.  J.  Eq.  204. 

»7  Barber  v.  Slade,  30  Vt  IDl,  73  Am.  Dec.  299;  Hall  v.  Young,  37  N.  H. 
134;  Johnson  v.  Bennett,  39  Barb.  (N.  Y.)  237;  Thomas  v.  City  of  Chicago, 
55  III.  403. 

08  Graham  v.  Dickinson,  3  Barb.  Ch.  (N.  Y.)  170;  Jones  v.  Plummer,  20 
Md.  416. 

»»  2  Kent,  Comm.  134. 


§  58)  wife's  statutory  separate  estate.  107 

The  common-law  rule,  giving  the  husband  an  absolute  right  to  his 
wife's  earnings,  is  so  far  modified  in  equity  that  by  the  aid  of  equity 
she  is  enabled  to  carry  on  a  separate  trade  or  business,  and  hold  the 
property  connected  with  such  trade  or  business,  and  the  profits  there- 
from, to  her  separate  use.  When  a  husband  has  agreed  with  his  wife 
that  she  may  carry  on  a  separate  trade  for  her  own  use  and  benefit, 
equity  will  protect  the  wife's  interests,  and  treat  the  husband,  when 
no  trustees  have  been  appointed,  as  trustee  for  the  wife  as  to  her 
stock  in  trade  and  the  profits  of  the  business,^  In  another  chapter 
this  doctrine  will  be  considered  more  at  length.* 


WIFE'S    EQUITABLE    SEPARATE   ESTATE. 

57.  In  equity  a  married  uroman  may  hold,  as  a  feme  sole,  and  free 
from  the  control  of  her  hnsband,  property,  real  or  personal, 
settled  to  her  sole  and  separate  use. 

As  will  be  fully  explained  in  a  subsequent  chapter,  in  order  to 
mitigate  the  hardships  arising  from  the  rules  of  the  common  law 
giving  to  the  husband  rights  in  his  wife's  property,  equity  has  created 
a  doctrine  by  which  a  married  woman  may  acquire  and  hold  a  sep- 
arate estate,  both  real  and  personal,  independently  of  her  husband, 
and  free  from  his  control.  For  this  purpose  equity  treats  married 
women,  in  relation  to  their  separate  property,  as  if  sole.  The  doc- 
trine is  a  creature  of  equity  only,  and  is  unknown  to  the  common 
law." 

WIFE'S    STATUTORY   SEPARATE   ESTATE. 

5S.  By  modern  statutes  in  all  the  states  certain  property  oivmed  or 
acquired  by  married  ■women,  and  in  some  states  all  the  prop- 
erty OTimed  or  acquired  by  them,  remains  their  separate  prop- 
erty. 

In  all  of  the  states,  statutes  have  been  enacted  changing  the  com- 
mon-law rules  in  so  far  as  they  give  the  husband  rights  in  his  wife's 
property.    In  none  of  the  states  is  the  old  common  law  in  force  to  the 


1  Story,  Eq.  Jur.  §  1387 ;  Ashworth  v.  Outram,  5  Ch.  Div.  923 ;  Partridge 
V.  Stocker,  36  Vt  108,  84  Am.  Dec.  664;  James  v.  Taylor,  43  Barb.  (N.  Y.)  530; 
Penn  v.  Whitehead,  17  Grat  (Va.)  503,  04  Am.  Dec.  478. 

*  Post,  p.  120.  «  See  post,  p.  141. 


108  RIGHTS  IN  PROPERTY   AS  AFFECTED   BY  COVERTURE.  (Ch,  3 

full  extent.  Perhaps  by  statute  in  all  the  states  the  real  property 
owned  by  a  woman  at  the  time  of  her  marriage  remains  her  separate 
property.  In  many  states  real  property  acquired  by  her  after  mar- 
riage by  descent,  devise,  or  purchase,  and  in  some  states  real  property 
acquired  by  her  in  any  way,  becomes  and  remains  her  separate  prop- 
erty. In  most  states  the  personal  property  owned  by  a  woman  at  the 
time  of  her  marriage  remains  her  separate  property.  In  most  states, 
also,  personal  property  acquired  by  her  after  marriage,  by  bequest  or 
descent,  and  in  some  states  by  purchase,  becomes  and  remains  her 
separate  property.  The  effect  of  these  statutes  will  be  considered  at 
length  in  a  subsequent  chapter.* 

WIFE'S    BIGHTS    IN   HUSBAND'S    PBOPEBTY. 

59.  At  the  death  of  the  husband  the  wife  is  entitled  at  conunon  law, 
or  under  an  early  English  statute,  or  similar  statutes  in  this 
country— 

(a)  As  her  dow^er,  at  common  Isfw,  to  one-third  of  all  lands  of  w^hich 

he  ivas  seised  at  any  time  during  the  coverture,  and  w^hich 
her  issue  might  have  inherited. 

(b)  As  her  thirds,  if  the  husband  died  intestate,  under  the  statute 

of  22  &  23  Car.  II.  o.  10,  to  one-third  of  his  personal  prop- 
erty, if  he  left  children  or  their  issue  living;  otherivise  to 
one-half. 

Corresponding  to  the  husband's  rights  by  curtesy,  the  surviving 
wife  has  in  most  states  certain  rights  in  her  husband's  lands,  known 
as  dower.*  She  is  entitled,  as  her  dower,  to  one-third  of  all  lands 
and  tenements  of  which  her  husband  was  seised  at  any  time  during 
the  coverture,®  and  which  any  issue  which  she  might  have  had  could 
have  inherited.''  Dower  and  curtesy  differ  in  important  particulars, 
and  principally  in  that  dower  is  independent  of  the  birth  of  issue. 

*  Post,  p.  148. 

5  Dower  has  been  abolished  in  some  states.  See,  for  example,  Code  Iowa 
1897,  §  33G6 ;    Laws  Colo.  1903,  p.  409,  §  1 ;    T^aws  Neb.  1907,  p.  197,  c.  49. 

6  In  Tennessee  (Shannon's  Code  1890,  §  4139)  and  Vermont  (P.  St.  1906,  § 
2921)  the  widow  has  dower  only  in  the  lands  of  which  the  husband  was 
seised  at  the  time  of  his  death.  So,  too,  in  some  states  a  nonresident  widow 
has  dower  only  in  the  lands  of  which  the  husband  was  seised  at  the  time  of 
his  death.  Michigan:  Comp.  Laws  1897,  §  8938;  Ligare  v.  Seuiple,  32  Mich, 
438.  Wisconsin:  St.  1898,  §  2160;  Bennett  v.  Harms,  51  Wis.  251,  8  N.  W. 
222.    Oregon:    B.  &  C.  Comp.  §  5535  ;   Thornbum  v.  Doscher  (C.  C.)  32  Fed.  811. 

7  2  Bl.  Comm.  130 ;    Dickin  v.  Hamer,  1  Drew.  &  S.  284. 


60)  ESTATES   BY    THE    ENTIRETY. 


109 


But,  corresponding  to  this  essential  of  curtesy  is  the  restriction  that 
the  wife  can  be  endowed  of  such  lands  only  as  her  issue  might  have 
inherited.  Thus,  where  the  husband  is  seised  of  lands  entailed  in 
favor  of  the  heirs  of  a  particular  woman,  the  issue  of  a  second  wife 
could  not  inherit,  and  she  has  no  right  of  dower  in  such  lands.  A 
further  important  4ifference  between  dower  and  curtesy  is  that  in 
some  states  by  statute  dower  is  not  restricted  to  the  life  of  the  wife, 
but  is  absolute,^  though  extending  to  only  one-third  of  her  husband's 
real  estate.  At  common  law  it  is  only  a  life  estate.  Before  the 
death  of  the  husband,  the  wife  has  an  inchoate  interest,  which  may 
ripen  into  dower,  and  any  alienation  by  the  husband  will  be  sub- 
ject to  such  interest,®  unless,  as  she  is  very  generally  allowed  by 
statute  to  do,  she  joins  him  in  the  conveyance  for  the  purpose  of 
barring  her  dower.  In  some  states,  by  statute,  on  a  judicial  sale 
of  a  husband's  real  estate  vesting  an  absolute  title  in  the  purchas- 
er, the  wife's  inchoate  interest  vests  as  it  would  on  his  death.  ^° 

Under  St.  22  &  23  Car.  II,  c.  10,  which  is  the  basis  of  the  stat- 
utes of  distribution  in  this  country,  and  which  has  been  closely  fol- 
lowed in  many  of  the  states,  the  widow  was  entitled,  in  case  of  her 
husband  dying  intestate,  to  one-third  of  his  personal  property,  aft- 
er payment  of  his  debts,  in  case  he  left  children  or  their  issue  sur- 
viving, and,  in  default  of  surviving  children  or  their  issue,  to  one- 
half.  In  the  latter  case  the  remaining  half  went  to  the  husband's 
next  of  kin,  if  any;  otherwise  to  the  crown. ^^  In  many  states  stat- 
utes have  been  enacted,  varying  more  or  less  in  the  different  states, 
changing  the  common-law  rules. 

ESTATES    BY    THE    ENTIRETY. 

60.  Wlien  land  is  conveyed  or  devised  to  husband  and  wife  jointly, 
they  take  as  tenants  by  the  entirety.  Each  is  seised  of  tlie 
w^hole,  and  the  land  goes  to  the  survivor.  This  doctrine  has 
been  abolished  in  some  states  by  statute. 

Where  land  is  conveyed  or  devised  to  husband  and  wife  joint- 
ly, they   take,  at  common   law,   not   as   joint   tenants  or   tenants   in 

8  In  Iowa  (Code  1897,  §  3366)  and  in  Minnesota  (Rev.  Laws  1905,  §  364S)  the 
widow  takes  her  distributive  share  in  lieu  of  dower,  in  fee. 
»  2  Bl.  Comm.  132 ;   Lowe  v.  Walker  (Ark.)  91  S.  W.  22. 

10  Elliott  V.  Gale,  113  Ind.  383,  14  N.  E.  708. 

11  2  Bl.  Comm.  515;   2  Kent,  Comm.  427;   Cave  v.  Roberts,  8  Sim.  214. 


110  RIGHTS  IN  PROPERTY  AS  AFFECTED   BY  COVERTURE.  (Ch.  3 

common,  but  as  tenants  by  the  entirety."  Neither  of  them  has  an 
undivided  half  of  the  land,  or  any  absolute  inheritable  interest,  but 
each  has  an  interest  in  the  whole, ^*  and  whatever  will  defeat  the 
interest  of  one  will  defeat  the  interest  of  the  other.^* 

During  coverture  both  take  the  same  and  an  inseparable  interest 


12  2  Kent,  Comm.  132;  Marshall  v.  Lane,  27  App.  D.  C.  27G ;  Oliver  v. 
Wright,  47  Or.  322,  83  Pac.  870;  Naler  v.  Ballew,  81  Ark,  328,  90  S.  W.  72; 
Booth  V.  Fordham,  100  App.  Div.  115,  91  N.  Y.  Supp.  406,  affirmed  in  185  N. 
Y.  535,  77  N.  E.  1182;  Wilson  v.  Frost,  186  Mo.  311,  85  S.  W.  375,  105  Am. 
St.  Rep.  619 ;  Wales  v.  Coffin,  13  Allen  (Mass.)  213 ;  Fisher  v.  Provin,  25  Mich. 
347;  Vinton  v.  Beamer,  55  Mich.  559,  22  N.  W.  40;  McDnff  v.  Beauchamp, 
50  Miss.  531 ;  Bates  v.  Seely,  46  Pa.  248 ;  Zomtlein  v.  Bram,  100  N.  Y.  12,  2 
N.  E.  388;  Bertles  v.  Nunan,  92  N.  Y.  152,  44  Am.  Rep.  361;  Wright  v.  Sad- 
dler, 20  N.  Y.  320. 

"A  conveyance  of  lands  to  a  man  and  his  wife,  made  after  their  intermar- 
riage, creates  and  vests  in  them  an  estate  of  a  very  peculiar  nature,  resulting 
from  that  intimate  union,  by  which,  as  Blackstone  says  'the  very  being  or  legal 
existence  of  the  woman  is  suspended  durhig  the  marriage,  or  at  least  is  in- 
corporated and  consolidated  into  that  of  the  husband.'  The  estate,  correctly 
speaking,  is  not  what  is  known  in  the  law  by  the  name  of  joint  tenancy. 
♦  •  *  The  very  name,  joint  tenants,  implies  a  plurality  of  persons.  It  can- 
not, then,  aptly  describe  husband  and  wife,  nor  correctly  apply  to  the  estate 
vested  in  them;  for  in  contemplation  of  law  they  are  one  person.  *  *  * 
Of  an  estate  in  joint  tenancy,  each  of  the  owners  has  an  undivided  moiety  or 
other  proportional  part  of  the  whole  premises ;  each  a  moiety  if  there  are  only 
two  owners,  and  if  there  are  more  than  two  each  his  relative  proportion.  They 
take  and  hold  by  moieties  or  other  proportional  parts ;  in  technical  language, 
thej'  are  seised  per  my  et  per  tout.  Of  husband  and  wife,  both  have  not  an 
undivided  moiety,  but  the  entirety.  They  take  and  hold,  not  by  moieties,  but 
each  the  entirety.  Each  is  not  seised  of  an  imdivided  moiety,  but  both  are, 
and  each  is  seised  of  the  whole.  They  are  seised  not  per  my  et  per  tout,  but  sole- 
ly and  simply  per  tout.  The  same  words  of  conveyance  which  make  two 
other  persons  joint  tenants  will  make  husband  and  wife  tenants  of  the  en- 
tirety."    Hardenbergh  v.  Hardenbergh,  10  N.  J.  Law,  42,  18  Am.  Dec.  371. 

It  does  not  affect  the  result  whether  the  consideration  was  furnished  partly 
by  both  or  entirely  by  one  of  them.  Stalcup  v.  Stalcup,  137  N.  C  305,  49  S. 
E.  210.  Ck)mpare  Frost  v.  Frost,  200  Mo.  474,  98  S.  W.  527,  118  Am.  St. 
Rep.  689.  A  conveyance  by  a  husband  to  himself  and  his  wife  does  not,  by  op- 
eration of  law,  make  them  tenants  by  the  entirety.  Saxon  v.  Saxon,  46  Misc. 
Rep.  202,  93  N.  Y.  Supp.  191.  Where  a  deposit  in  a  bank  stands  in  the  joint 
names  of  a  husband  and  his  wife,  they  hold  by  the  entireties,  and,  on  the 
death  of  either,  the  survivor  takes  the  whole.  In  re  Klenke's  Estate,  210 
Pa.  572,  60  Atl.  166. 

18  Frost  V.  Frost,  200  Mo.  474,  98  S.  W.  527,  118  Am.  St.  Rep.  689. 

1*  Manwaring  v.  Powell,  40  Mich.  371. 


§    60)  ESTATES   BY    THE   ENTIRETY.  Ill 

in  the  whole  property."  Neither  has  such  a  separate  interest  as 
he  or  she  can  sell,  incumber,  or  devise,  and  neither  can  by  a  sep- 
arate transfer  affect  the  rights  of  the  other."  On  the  death  of  ei- 
ther, the  whole  estate  goes  to  the  survivor.^'' 

In  a  few  states  the  doctrine  of  tenancy  by  the  entirety  has  not 
been  recognized,  it  seems ;  ^^  and  in  some  states  it  has  been  abolish- 
ed, or  modified  by  statute,  so  that  a  conveyance  to  husband  and  wife 
makes  them  joint  tenants  or  tenants  in  common;  the  statutes  vary- 
ing somewhat  in  the  different  states."  In  many  states,  however,  the 
doctrine  still  obtains. 

15  Frost  V.  Frost,  200  Mo.  474,  98  S.  W.  527,  118  Am.  St.  Rep.  689.  Where 
a  husband  and  wife  hold  an  estate  as  tenants  by  entireties,  and  are  divorced, 
the  tenancy  does  not  thereby  become  a  tenancy  in  common.  Alles  v.  Lyon,  216 
Pa.  604,  66  Atl.  81,  10  L.  R.  A,  (N.  S.)  463,  116  Am.  St.  Rep.  791. 

16  Wales  V.  Ck)ffin,  13  Allen  (Mass.)  213;  Fisher  v.  Provin,  25  Mich.  347; 
Bertles  v.  Nunan,  92  N.  Y.  152,  44  Am.  Rep.  361 ;  Zorntlein  v.  Beam,  100  N.  Y. 
12,  2  N.  E.  388 ;  Jackson  v.  McConnell,  19  Wend.  (N.  Y.)  175,  32  Am.  Dec.  439 ; 
Hubert  v.  Traeder,  139  Mich.  69,  102  N.  W.  283,  holding  that  a  contract  by  the 
husband  alone,  whereby  another  was  to  have  the  farm  at  the  husband's  death, 
and  a  will  executed  by  the  husband  to  carry  out  the  contract,  were  ineffectual 
to  vest  any  title  as  against  the  surviving  wife.  But  see  Bynum  v.  Wicker,  141 
N.  C.  95,  53  S.  E.  478,  115  Am.  St.  Rep.  675,  holding  that  where  a  husband, 
by  deed  in  wlilch  the  wife  does  not  join,  conveys  an  estate  held  by  entireties, 
both  he  and  his  wife  are  estopped  from  interfering  with  the  possession  of  the 
premises  during  their  joint  lives. 

17  Barber  v.  Harris,  15  Wend.  (N.  Y.)  615;  Pierce  v.  Chace,  108  Mass.  254; 
Bates  V.  Seely,  46  Pa.  248;  Naler  v.  Ballew,  81  Ark.  328,  99  S.  W.  72;  Oliver 
V.  Wright,  47  Or.  322,  83  Pac.  870 ;  Frost  v.  Frost,  200  Mo.  474,  98  S.  W.  527, 
118  Am.  St.  Rep.  689;  Young  v.  Biehl,  106  Ind.  357,  77  N.  E.  406;  Boland  v. 
McKowen,  189  Mass.  563^  76  N.  E.  206,  109  Am.  St.  Rep.  663;  French  v. 
Mehan,  56  Pa.  286;  JEtna  Ins.  Co.  v  Resh,  40  Mich.  241;  Manwaring  v. 
Powell,  Id.  371 ;  Allen  v.  Allen,  47  Mich.  74,  10  N.  W.  113.  In  a  late  Pennsyl- 
vania case,  husband  and  wife,  who  were  tenants  by  entireties,  mortgaged  the 
land  so  held.  After  the  wife's  death  it  was  sold  under  a  judgment  against 
the  husband  entered  prior  to  the  mortgage.  It  was  held  that,  as  the  wife's 
estate  terminated  at  her  death,  the  purchaser  at  the  execution  sale  took  a 
good  title  as  against  the  mortgage.    Fleek  v.  Zillhaver,  117  Pa.  213,  12  Atl.  420. 

18  See  Sergeant  v.  Steinberger,  2  Ohio,  305,  15  Am.  Dec.  553;  Whittlesey  v. 
Fuller,  11  Conn.  337. 

19  See  Gresham  v.  King,  05  Miss.  387,  4  South.  120;  Bassler  v.  Rewodlinski, 
130  Wis.  26,  109  N.  W.  1032,  7  L.  R.  A.  (N.  S.)  701 ;  Holmes  v.  Holmes,  70  Kan. 
892,  79  Pac.  163;  Cooper  v.  Cooper,  76  111.  57.  Some  courts  hold  that  the 
doctrine  is  impliedly  abolished  by  the  married  women's  acts  giving  them 
separate  property  rights.  Cooper  v.  Cooper,  76  111.  57 ;  Green  v.  Can- 
naday,  77  S.  C.  193,  57  S.  E.  832;    Clark  v.  Clark,  56  N.  H.  105.     But  the 


112  RIGHTS   IN   PROPERTY  AS  AFFECTED   BY   COVERTURE.  (Ch.  3 

It  has  been  held  that  the  wife's  interest,  in  view  of  its  nature,  in 
property  thus  held  by  the  entirety,  cannot  be  regarded  as  her  sep- 
arate property,  within  the  meaning  of  statutes  giving  married  women 
the  power  to  hold  separate  property,  and  convey  the  same,  or  con- 
tract with  reference  to  it.*" 


COMMUNITY  PROPERTY. 

61.  In  some  states,  by  statute,  property  acquired  by  husband  and 
xirife,  or  by  either  of  them,  daring  coverture,  otherwise  than 
in  certain  excepted  \rays  specified  in  the  statute,  is  declared 
to  be  common  property.  These  statutes  create  a  kind  of  part- 
nership between  husband  and  wife  in  regard  to  property. 
The  doctrine  was  adopted  from  the  civil  law,  and  was  nn- 
knoT^n  to  the  common  law. 

The  community  property  doctrine  was  unknown  to  the  common 
law,  and  it  seems  was  equally  unknown  to  the  Roman  law.  It 
had  its  origin  among  Teutonic  peoples,^  ^  and,  becoming  ingrafted 
on  the  French  and  Spanish  law,  was  carried  to  the  colonies  of 
France  and  Spain  in  the  New  World.  By  adoption  from  the  Codes 
of  those  countries  it  now  prevails  in  Louisiana,  Texas,  California, 
Washington,  and  a  few  other  Western  and  Southwestern  states. 
The  general  scheme  of  these  statutes  is  the  same,  but  they  vary  wide- 
ly in  details,  and  it  is  not  possible  to  state  general  rules  which  will 
be  applicable  in  all  the  states.  The  statutes  and  decisions  must  be 
consulted.  In  most  instances  all  the  property  acquired  during  cov- 
erture by  either  the  husband  or  the  wife,  or  by  both,  is  declared  to 
be  common  or  community  property;^*    but  generally   property   ac- 

weight  of  authority  is  to  the  contrary.  Pray  v.  Stebbins,  141  Mass.  219,  4  N. 
E.  824,  55  Am.  Rep.  462;  Bilder  v.  Robinson  (N.  J.  Oh.)  67  Atl.  828;  McDufif 
V.  Beauchamp,  50  Miss.  531;  Gresham  v.  King,  65  Miss.  387,  4  South.  120; 
Bertles  v.  Nunan,  92  N.  Y.  152,  44  Am.  Rep.  361 ;  MeCurdy  v.  Canning,  64  Pa. 
39;  Marburg  v.  Cole,  49  Md.  402,  33  Am.  Rep.  206 ;  Fisher  v.  Provin,  25  Mich. 
347;    Diver  v.  Diver,  56  Pa.  106 ;    Hetzel  v.  Lincoln,  216  Pa.  60,  64  Atl.  806. 

'^0  Speier  v.  Opfer,  73  Mich.  35,  40  N.  W.  909,  2  L.  R.  A.  345,  16  Am.  St.  Rep. 
556;  Curtis  v.  Crowe,  74  Mich.  99,  41  N.  W.  876.  But  see  Dreutzer  v.  Law- 
rence, 58  Wis.  594,  17  N.  W.  423. 

21  Cole  V.  Cole's  Ex'rs,  7  Mart.  N.  S.  (La.)  41,  18  Am.  Dec.  241. 

2  2  Otto  V.  Long,  144  Cal.  144,  77  Pac.  885;  Pancoast  v.  Pancoast.  57  Cal. 
320;  Wade  v.  Wade  (Tex.  Civ.  App.)  106  S.  W.  188;  Merrell  v.  Moore  (Tex. 
Civ.  App.)  104  S.  W.  514 ;   Newman  v.  Newman  (Tex.  Civ.  App.)  86  S.  W.  635 ; 


§    61)  COMMUNITY   PROPERTY.  113 

quired  by  gift,  bequest,  devise,  or  descent  is  excepted,  and  becomes 
the  separate  property  of  the  spouse  by  whom  it  is  acquired.^'  So, 
too,  property  held  by  either  husband  or  wife  at  the  time  of  the  mar- 
riage, and  property  acquired  by  means  of  the  separate  property  of 
either  spouse,  does  not  become  community  property.^* 

The  central  idea  of  the  community  system  is  that  marriage  creates 
a  partnership  in  property  between  husband  and  wife,  and  that  all 
property  resulting  from  the  labor  of  either  or  both  of  them,  and  all 
property  vesting  in  either  or  both  of  them,  except  in  the  ways  ex- 
pressly excepted  by  the  statute,  inures  to  the  benefit  of  both  of  them ; 
and,  though  community  property  has  not  all  the  incidents  of  partner- 
ship property,  it  has  many  of  them,  and  is  commonly  called  "part- 
nership property."  ^^ 

The  presumption  of  law  is  that  property  purchased  during  the  ex- 
istence of  the  marriage  relation,  whether  it  is  purchased  in  the  name 
of  both  spouses  or  in  the  name  of  one  only,  is  community  property.^' 

Sweeney  v.  Taylor  Bros.,  41  Tex.  Civ.  App.  365,  92  S.  W.  442 ;  Crochet  v.  Mc- 
Camaut,  116  La.  1,  40  South.  474,  114  Am.  St  Rep.  538;  Pior  v.  Giddens,  50 
La.  Ann.  216,  23  South.  337. 

2  3  Wade  V.  Wade  (Tex.  Civ.  App.)  106  S.  W.  188;  Merrell  v.  Moore  (Tex. 
Civ.  App.)  104  S.  W.  514;  Ballinger  v.  Wright,  143  Cal.  292,  76  Pac.  IIOS; 
Stoikstill  V.  Bart  (C.  C.)  47  Fed.  231;  Lake  v.  Bender,  18  Nev.  361,  4  Pac. 
711,  7  Pac.  74;  Allen  v.  Allen,  6  Rob.  (La.)  104,  39  Am.  Dec.  553;  Hurst  v. 
W.  B.  Thompson  &  Co.,  118  La.  57,  42  South.  645 ;  Holly  St.  Land  Co.  v.  Bey- 
er, 48  Wash.  422,  93  P.  1065. 

2  4  Oaks  v.  Oaks,  94  Cal.  66,  29  Pac.  330;  Smith  v.  Smith,  12  Cal.  216,  73 
Am.  Dec.  533;  Letot  v.  Peacock  (Tex.  Civ.  App.)  94  S.  W.  1121;  Wade  v. 
Wade  (Tex.  dv.  App.)  3C6  S.  W.  188;  Love  v.  Robertson,  7  Tex.  6,  56  Am. 
Dec.  41;  Freeburger  v.  Gozzam,  5  Wash.  772,  32  Pac.  732. 

But  in  Louisiana  such  property,  as  a  rule,  becomes  community  property, 
subject  to  a  claim  to  the  amount  of  the  separate  property  so  used  in  favor  of 
the  spouse  whose  separate  estate  furnished  the  consideration.  Moore  v. 
Stancel,  36  La.  Ann.  819;   Le  Blane  v.  Le  Blane,  20  La.  Ann.  206. 

25  3  Am.  &  Eng.  Enc.  Law,  350,  354.  See  De  Blane  v.  Ljmch,  23  Tex.  25; 
Meyer  v.  Kinzer,  12  Cal.  247,  73  Am.  Dec.  538 ;  Clark  v.  Norwood,  12  La.  Ann. 
598;  Cooke  v.  Bremond,  27  Tex.  457,  86  Am.  Dec.  626;  Higgins  v.  Johnson's 
Heirs,  20  Tex.  389,  70  Am.  Dec.  39i. 

26  Meyer  v.  Kinzer,  12  Cal.  247 ;  Love  v.  Robertson,  7  Tex.  6,  56  Am.  Dec. 
41;  Morris  v.  Hastings,  70  Tex.  26,  7  S.  W.  649,  8  Am.  St.  Rep.  570;  Smalley 
V.  Lawrence,  9  Rob.  (La.)  211 ;  Staufter  v.  Morgan,  39  La.  Ann.  632,  2  South. 
98;  Lake  v.  Bender,  18  Nev.  ?>61,  4  Pac.  711,  7  Pac.  74;  Yesler  v.  Hochstet- 
tler,  4  Wash.  349,  30  Pac. -398;  Hoopes  v.  Mathis,  40  Tex.  Civ.  App.  121,  89 
S.  W.  36 ;  York  v.  Hilger  (Tex.  Civ.  App.)  84  S.  W.  1117. 

TIFF.P.&  D.Rei,.(2d  Ed.)— 8 


114  RIGHTS  IN  PROPERTY  AS  AFFECTED   BY  COVERTURE,  (Ch.  3 

But  the  presumption  may  be  rebutted.  When  property  is  purchased 
in  the  wife's  name  she  may  rebut  the  presumption  by  showing  that 
the  purchase  was  made  by  investment  of  her  paraphernal  or  sep- 
arate property.^ ^  And  in  Hke  manner  the  husband  may  show  that  he 
made  a  purchase  with  his  separate  funds. ^*  In  either  case  the  proof, 
to  rebut  the  presumption,  must  be  clear.^®  It  is  not  necessary  to 
prove  that  property  is  in  fact  the  product  of  the  joint  efforts  of  hus- 
band and  wife  to  estabhsh  its  character  as  community  property.  If  it 
is  acquired  after  the  marriage  by  either  alone,  but  not  in  a  way  ex- 
cepted by  the  statute,  it  belongs  to  the  community.^"  Community 
property  is  made  liable  for  community  debts. ^^  During  coverture  the 
husband  has  the  management  and  control  of  it,'^  and  in  some  states  he 
can  assign  or  convey  or  .incumber  it  without  the  consent  of  the  wife.'' 
In  other  states,  he  cannot  do  so  unless  she  joins  him.'* 

2  7  Stauffer  v.  Morgan,  39  La.  Ann.  632,  2  South.  98. 

2  8  Estate  of  Higgins,  65  Cal.  407,  4  Pac.  389;  York  v.  Ililger  (Tex.  Civ. 
App.)    84    S.   W.    1117. 

29  Morris  v.  Hastings,  70  Tex.  26,  7  S.  W.  649,  8  Am.  St.  Rep.  570;  Morgan 
V.  Lones,  78  Cal.  58,  20  Pac.  248;  Brusle  v.  Dehon,  41  La.  Ann.  244,  6  South.  31. 

3  0  Lake  v.  Bender,  18  Nev.  361,  4  Pac.  711,  7  Pac.  74. 

31  Kerley's  Succession,  18  La.  Ann.  583;  Sbuey  v.  Adair,  24  Wash.  378,  64 
Pac.  530 ;  IMoor  v.  Moor,  31  Tex.  Civ.  App.  137,  71  S.  W.  794 ;  Dever  v.  Selz, 
39  Tex.  Civ.  App.  558,  87  S.  W.  891;  Floding  v.  Denholm,  40  Wash.  463, 
82  Pac.  738.  It  is  also  generally  liable  for  the  husband's  separate  debts. 
Schuyler  v.  Broughton,  70  Cal.  282,  11  Pac.  719;  Davis  v.  Compton,  13  La. 
Ann.  396;  Lee  v.  Henderson,  75  Tex.  190,  12  S.  W.  981.  But  in  Washington 
the  real  estate  is  exempt,  though  personal  property  is  liable.  Gund  v.  Parke, 
15  Wash.  393,  40  Pac.  408;  Iloss  v.  Howard,  31  Wash.  393,  72  Pac.  74;  Levy 
v.  Brown  (O.  C.)  53  Fed.  568.  Community  property  is  not  liable  for  a  debt 
created  by  a  tort  of  either  spouse,  or  for  a  debt  which  is  not  for  the  benefit 
of  the  community.     Floding  v.  Denholm,  40  Wash.  463,  82  P.  738. 

8  2Warburton  v.  White,  176  U.  S.  484,  20  Sup.  Ct.  404,  44  L.  Ed.  555; 
Schaadt  v.  Mutual  Life  Ins.  Co.,  2  Cal.  App.  715,  84  Pac.  249;  Spreckels  v. 
Spreckels,  116  Cal.  339,  48  Pac.  228,  36  L.  R.  A.  497,  58  Am.  St  Rep.  170; 
Newman  v.  Newman  (Tex.  Civ.  App.)  86  S.  W.  635. 

33  Spreckels  v.  Spreckels,  116  Cal.  339,  48  Pac.  228,  36  L.  R.  A.  497,  58 
Am.  St  Rep.  170;  Wilson  v.  Wilson,  6  Idaho,  597,  57  Pac.  70S;  Cotton  v. 
Cotton,  34  La.  Ann.  858;  Schaadt  v.  Mutual  Life  Ins.  Co.  of  New  York,  2 
Cal.  App.  715,  84  Pac.  249;  Zuckerman  v.  Munz  (Tex.  Civ.  App.)  107  S.  W. 
78;  Sweeney  v.  Taylor  Bros.,  41  Tex.  Civ.  App.  365,  92  S.  W.  442.  A  wife, 
with  the  authority  and  assent  of  her  husband,  may  make  a  valid  conveyance 
of  community  real  estate,  though  the  husband  did  not  join  therein.  Roos  v. 
Basham,  41  Tex.  Civ.  App.  551,  91  S.  W.  650. 

8*  Kimble  v.  Kimble,  17  Wash.  75,  49  Pac.  216. 


62)  CONTRACTS,  CONVEYANCES,  AND   QUASI-CONTRACT.  115 


CHAPTER  IV. 

CONTRACTS,  CONVEYANCES,  ETC..  AND  QUASI  CONTRACTUAL  OBLI- 
GATIONS. 

62.  Contracts  of  Wife. 

63,  64.  Wife  as  a  Sole  Trader. 

65-68.  Conveyances,  Sales,  and  Gifts  by  Wife. 

69,  Contracts  of  Husband. 

70,  71.  Contracts  of  Wife  as  Husband's  Agent. 

72.  Husband's  Liability  for  Wife's  Funeral  Expenses. 

73.  Husband's  Liability  for  Wife's  Antenuptial  Debts. 


CONTRACTS  OF  'WIFE. 

62.  Except  in  the  following  cases,  a  married  \iroman  lias  no  poxrer 
or  capacity  to  contract.  Her  attempted  contracts  are  not 
voidable  merely,  but  are  absolutely  void. 
EXCEPTIONS — (a)  She  can  contract  and  sue  and  be  sued  as  a  feme 
sole,  even  at  common  law,  when  her  husband  has  been  ban- 
ished, has  abjured  the  realm,  is  a  nonresident  alien,  or  has 
been  transported. 

(b)  In   equity,  with  the   consent   of  her  husband,   she    may  carry   on 

a    separate    trade    or    business,    and    contract    with    reference 
thereto. 

(c)  In   equity   she   may   contract   with   reference   to   her   separate   es- 

tate, so  as  to  bind  it,  but  not  so  as  to  bind  herself  personally. 

(d)  Under  modern  statutes,  her  disability  to  contract   has   been  re- 

moved to  a  greater  or  less  extent  in  the  different  states. 

As  a  result  of  the  common-Iaw  principle  that  the  legal  existence  of 
a  woman  is  lost  during  coverture,  the  attempted  contracts  of  a  mar- 
ried woman  are,  with  few  exceptions,  absolutely  void.  She  cannot, 
during  coverture,  enter  into  a  contract  that  will  bind  her  personally, 
either  during  coverture  or  after  her  coverture  has  been  determined 
by  death  or  divorce;   and  the  rule  is  the  same  at  law  and  in  equity.^ 

12  Kent,  Comin.  150;  Sockett  v.  Wray,  4  Brown,  Ch.  483,  487;  Kenge  v. 
Delavall,  1  Vern.  326;  Ross  v.  Singleton,  1  Del.  Ch.  149,  12  Am.  Dec.  86; 
Marshall  v.  Rutton,  8  Term  R.  547;  Fairhurst  v.  Liverpool  Adelphi  Loan 
Ass'n,  23  Law  J.  Exch.  163;  Pittam  v.  Foster,  1  Barn.  &  C.  248;  Lowell  v. 
'  Daniels,  2  Gray  (Mass.)  161,  61  Am.  Dec.  448 ;  Bemis  v.  Call,  10  Allen  (Mass.) 
512;    Pierce  v.  Chace,  108  Mass.  254,  259;    Butler  v.   Buckingham,  5   Day 


116  CONTRACTS,  CONVEYANCES,  AND   QUASI-CONTRACT.  (Ch.  4 

In  a  Delaware  case  a  married  woman  sold  certain  lands  to  another, 
both  she  and  the  purchaser  erroneously  believing  that  her  husband 
was  dead,  the  probability  being  that  such  was  the  case.  After  the  hus- 
band's death  the  purchaser  brought  a  suit  in  equity  to  compel  the 
woman  to  make  him  a  deed  to  the  land,  and  to  restrain  her  from  en- 
forcing a  judgment  in  ejectment  which  she  had  obtained  against  him. 
It  was  held  that  he  was  not  entitled  to  relief,  even  though  the  pur- 
chase was  in  good  faith,  and  though  he  had  made  valuable  improve- 
ments on  the  land.  The  contract,  being  by  a  married  woman,  it  was 
said,  was  absolutely  void,  and  a  court  of  equity  could  not  give  validity 
to  a  contract  void  at  law.^  She  cannot  be  rendered  liable  on  her  at- 
tempted contracts,  either  directly  or  indirectly.  She  cannot,  there- 
fore, be  estopped  to  attack  their  validity  by  reason  of  her  conduct  in 
entering  into  them,  or  by  her  acts  or  admissions  in  relation  to  them. 
To  hold  her  thus  estopped  would  be  to  indirectly  enforce  her  con- 
tracts.' 

New  Promise  after  Death  of  Husband  or  Divorce. 

Since  the  contracts  of  a  married  woman  during  coverture  are  ab- 
solutely void,  on  principle  they  should  have  no  effect  whatever.  By 
the  weight  of  authority,  therefore,  a  promise  by  a  married  woman,  aft- 
er her  coverture  has  been  determined  either  by  death  or  divorce,  to 
perform  a  promise  given  by  her  during  coverture,  is  void  for  want  of 
consideration.  In  other  words,  she  cannot,  after  the  death  of  her 
husband  or  a  divorce,  ratify  a  contract  entered  into  by  her  during  cov- 
erture, and  thereby  render  it  binding  upon  her.*  Some  of  the  courts 
have  sustained  such  a  ratification  on  the  ground  that  she  is  under  a 

(Conn.)  492,  5  Am.  Dec.  174;  Kelso  v.  Tabor,  52  Barb.  (N.  Y.)  125;  Hollis  v. 
Francois,  5  Tex.  195,  51  Am.  Dec.  760;  Norris  v.  Lantz,  18  Md.  260;  Glidden 
V.  Strupler,  52  Pa.  400;  Love  v.  Love  (Pa.)  12  Atl.  498;  Tracy  v.  Keith,  11 
Allen  (Mass.)  214;  Farrar  v.  Bessey,  24  Vt.  89;  Rodemeyer  v.  Rodman,  5 
Iowa,  420;  Pond  v.  Carpenter,  12  Minn.  430  (Gil.  315).  See,  also,  Burns  v. 
Cooper,  140  Fed.  278.  72  C.  C.  A.  25. 

2  Ross  V.  Singleton,  1  Del.  Ch.  149,  12  Am.  Dec.  86. 

3  See  the  cases  above  cited.  And  see  Pierce  v.  Chace,  108  Mass.  254,  259 ; 
Miles  V.  Lingerman,  24  Ind.  385 ;  Drury  v.  Foster,  2  Wall.  24,  17  L.  Ed.  1S(\\ 
Merriam  v.  Railroad  Co.,  117  Mass.  241. 

4  Meyer  v.  Haworth,  8  Adol.  &  El.  467;  Loyd  v.  Lee,  1  Strange,  94;  Len- 
nox V.  Eldred,  1  Thomp.  &  C.  (N.  Y.)  140;  Hayward  v.  Barker,  52  Vt.  429, 
36  Am.  Rep.  762 ;  Hubbard  v.  Bugbee,  58  Vt.  172,  2  Atl.  594 ;  Putnam  v.  Ten- 
nyson. 50  Ind-  456;  Candy  v.  Coppock,  85  Ind.  594;  Porterfield  v.  Butler, 
47  Miss.  165,  12  Am.  Rep.  329 ;   Clark,  Cont  203,  and  cases  there  cited. 


§    62)  CONTRACTS   OF   WIFE.  117 

moral  obligation  to  perform  the  contract,  and  that  this  obligation  is 
a  sufficient  consideration  to  support  her  promise  after  coverture.'^ 
This,  however,  is  directly  contrary  to  the  well-settled  rule  of  the  law 
of  contract  that  a  mere  moral  obligation  is  no  consideration  for  a 
promise.' 

Exceptions  to  the  Rule  at  Common  Law. 

There  were  exceptions  to  the  rule  at  common  law  in  regard  to  con- 
tracts of  married  women  in  cases  where  the  husband  had  been  ban- 
ished, or  had  abjured  the  realm,  or  was  a  nonresident  alien,  or  was 
under  sentence  of  transportation  or  of  penal  servitude  for  a  term  of 
years  or  for  life.  In  these  cases  he  was  regarded  as  civilly  dead,  and 
the  wife  had  the  power  to  contract,  and  could  sue  and  be  sued,  as  a 
feme  sole.''  These  doctrines  have  been  adopted  with  some  modifica- 
tions in  this  country.*  It  has  been  very  generally  held  that  a  mar- 
ried woman  has  power  to  contract,  and  to  sue  and  be  sued  in  relation 
to  her  contracts,  where  her  husband  has  abandoned  her  and  the  coun- 
try; and  residence  in  another  state,  with  intention  to  abandon  her, 
has  been  regarded  as  equivalent  to  residence  in  a  foreign  country.® 
The  rule  has  even  been  applied  in  cases  where  the  husband  has  aban- 
doned his  wife,  without  leaving  the  state. ^°  To  give  rise  to  the  excep- 
tion, the  husband  must  have  renounced  all  his  marital  rights  and  rela- 
tions.^^ 

6  Lee  V.  Muggeridge,  5  Taunt.  36;  Brown  v.  Bennett,  75  Pa.  420;  Sharp- 
less'  Appeal,  140  Pa.  63,  21  Atl.  239;  Goulding  v.  Davidson,  26  N.  Y.  604; 
Hubbard  v.  Bugbee,  55  Vt.  506,  45  Am.  Rep.  637. 

6  Clark,  Ck)nL  180,  203. 

7  1  Bl.  Comm.  443 ;  2  Kent,  Comm.  154  (where  the  question  is  considered 
at  length,  and  the  English  cases  are  collected  and  discussed) ;  Carrol  v.  Blen- 
cow,  4  Esp.  27;  Belknap  v.  Lady  Weyland,  Co.  Litt.  132b,  133a;  Derry  v. 
Duchess  of  Mazarine,  1  Ld.  Raym.  147. 

8  Gregory  v.  Paul,  15  Mass.  31 ;  Rhea  v.  Rhenner,  1  Pet.  105,  7  L.  Ed.  72 ; 
•Robinson  v.  Reynolds,  1  Aikens  (Vt.)  174,  15  Am.  Dec.  673,  and  cases  here- 
after cited. 

9  Gregory  v.  Paul,  15  Mass.  31 ;  Abbot  v.  Bayley,  6  Pick.  (Mass.)  89 ;  Os- 
born  V.  Nelson,  59  Barb.  (N.  Y.)  375 ;  Rhea  v.  Rhenner,  1  Pet.  105,  7  L.  Ed. 
72;  Arthur  v.  Broadnax,  8  Ala.  557,  37  Am.  Dec.  707;  Krebs  v.  O'Grady,  23 
Ala.  727,  58  Am.  Dec.  312;  Smith  v.  Silence,  4  Iowa,  321,  66  Am.  Dec.  137; 
Rose  V.  Bates,  12  Mo.  30;  Rosenthal  v.  Mayhugh,  33  Ohio  St.  155;  Starrett 
V.  Wynn,  17  Serg.  &  R.  (Pa.)  130,  17  Am.  Dec.  654;  Bean  v.  Morgan,  4  Mc- 
Cord  (S.  C.)  148. 

10  Love  V.  Moynehan,  10  III.  277,  63  Am.  Dec.  306. 

11  Ayer  v.  Warren,  47  Me.  217;  Gregory  v.  Pierce,  4  Mete.  (Mass.)  478; 
Beckman  v.  Stanley,  8  Nev.  257. 


118  CONTRACTS,  CONVEYANCES,  AND   QUASI-CONTRACT.  (Ch.  4 

Exceptions  in  Equity. 

Courts  of  equity  recognize  certain  exceptions  to  the  rule  that  a 
married  woman  cannot  enter  into  a  contract.  Thus  in  equity,  as 
will  be  seen  in  a  subsequent  section,  a  wife  may,  with  the  consent 
of  her  husband,  carry  on  business  as  a  sole  trader,  and  may  contract 
with  reference  to  her  separate  trade  or  business.^ ^ 

As  was  stated  in  a  preceding  chapter,  in  equity  a  married  woman 
may  acquire  and  hold  an  estate  to  her  sole  and  separate  use.  In  re- 
lation to  this  estate,  she  may  to  some  extent  make  contracts  which  a 
court  of  equity  will  enforce  against  the  separate  property.  She  cannot, 
however,  even  in  equity,  much  less  at  law,  make  a  contract  in  relation 
to  such  separate  estate  which  will  be  binding  upon  her  personally. 
The  extent  to  which  a  married  woman  may  contract  so  as  to  bind  her 
equitable  separate  estate  will  be  shown  at  some  length  in  a  subse- 
quent chapter.  ^^ 

Under  Modern  Statutes. 

In  recent  years  the  Legislatures  of  the  different  states  have  enact- 
ed laws  removing  to  a  greater  or  less  extent  the  common-law  dis- 
ability of  a  married  woman  to  contract.  In  some  states  the  disa- 
bility has  been  wholly  removed,  so  that  she  can  now  contract  and 
sue  and  be  sued  as  a  feme  sole;  ^*  while  in  others  the  disability  has 
been  only  partially  removed,  and  she  can  contract  only  to  a  limited 
extent.  Thus  in  some  states  she  cannot  contract  with  her  hus- 
band,^" and  in  others  she  is  prohibited  from  entering  into  contracts 


12  Tost,  p.  120.  IS  Post,  p.  144. 

1*  Code  Ala.  1907,  §§  4492,  4493  (but  she  may  not  contract  as  surety,  sec- 
tion 4497) ;  Kurd's  Rev.  St.  111.  1908,  c.  86,  §  6 ;  Code  Pub.  Gen.  Laws,  Md. 
1904,  art.  45,  §  5 ;  Rev.  St.  Mo.  1899,  §  4335  (Ann.  St.  190(5,  p.  2378);  Bates' 
Ann.  St.  Ohio  190G,  §  3112;  B.  &  C.  Comp.  Or.  §  5249;  Pierce's  Code  Wash. 
§  3873  (Ballinger's  Ann.  Codes  &  St.  §  4504);  Major  v.  Holmes,  124  Mass. 
108;  Caldwell  v.  Blauchard,  191  Mass.  489,  77  N.  E.  1036;  Young  v.  Hart,. 
101  Va.  480,  44  S.  E.  703;  Dempsey  v.  Wells,  109  Mo.  App.  470,  84  S.  W.  1015. 
And  see  Freret  v.  Taylor,  119  La.  307,  44  South.  26,  121  Am.  St  Rep.  522, 
holding  that  where  a  married  woman  is  authorized  under  the  law  of  her  domi- 
cile to  enter  into  a  contract  as  a  feme  sole,  and  to  sue  and  be  sued  without 
her  husband  being  joined  as  a  party,  her  status  as  to  contracting  and  as  to 
suing  and  being  sued  accompanies  her  to  this  state  unless  controlled  by  con- 
siderations of  public  policy.  In  Minnesota  she  can  make  all  contracts  as  if 
sole,  except  contracts  to  convey  her  homestead.     Rev.  Laws  1905,  §  3607. 

15  Rev.  Laws  Mass.  1902,  c.  153,  §  2;    Pub.  St  N.  H.  1901,  c.  170,  §  2.     The 
right  of  a  married  woman  to  enter  into  a  partnership   contract  with  her 


§    62)  CONTRACTS   OF   WIFE.  119 

of  suretyship,*"  or  to  convey  land."  In  all  the  states  statutes  have 
been  enacted  allowing  a  married  woman  to  acquire  and  hold  proper- 
ty as  her  separate  estate,  and  under  these  statutes  she  has  more  or 
less  general  power  to  contract  in  relation  to  her  separate  estate.  The 
effect  of  these  statutes  will  be  considered  in  a  separate  chapter.*^ 
It  is,  however,  generally  held  that  such  statutes  do  not,  of  themselves, 
give  married  women  unlimited  capacity  to  contract.*" 


husband  is  denied  in  Haggett  v.  Hurley,  91  Me.  542,  40  Atl.  561,  41  L.  R.  A- 
362.  But  see  Townsend  v.  Huntzinger  (Ind.  App.)  83  N.  E.  619.  And  see 
Code  Pub.  Gen.  Laws  Md.  1904,  art.  45,  §  20;  Code  Ala.  1907,  §  4497.  It 
was  held  in  Appeal  of  Spitz,  56  Conn.  184,  14  Atl.  776,  7  Am.  St  Rep.  303, 
that  the  provision  of  the  Connecticut  statute  (Gen.  St.  1902,  §  4545)  declar- 
ing that  a  married  woman  may  contract  with  third  persons  does  not  pro- 
hibit contracts  with  her  husband.  The  wife  had  the  right  in  equity  to  con- 
tract with  her  husband,  and  as  the  statute  is  silent  on  the  subject  the  right 
is  not  taken  away. 

16  Code  Ala.  1907,  §  4497;  Code  Ga.  1895,  §§  2488,  2492;  Burus'  Ann.  St. 
Ind.  1908,  §§  7851,  7855;  Ky.  St  1903,  §  2127;  Pub.  St  N.  H.  1901,  c.  176,  § 
2 ;  P.  &  L.  Dig.  Pa.  p.  2890,  par.  2.  See,  also.  Bank  of  Commerce  v.  Baldwin, 
14  Idaho,  75,  93  Pac.  504;  Indianapolis  Brewing  Co.  v.  Betmke  (Ind.  App.) 
81  N.  E.  119.  In  Indiana  the  statute  confers  on  married  women  power  to 
contract  as  if  sole,  except  that  she  camiot  bind  herself  as  surety  or  convey  her 
real  estate  unless  her  husband  joins  in  the  conveyance.  Townsend  v.  Hunt- 
zinger (Ind.  App.)  83  N.  E.  619;  Kennedy  v.  Swisher,  84  Ind.  App.  676,  73 
N.  E.  724;  Anderson  v.  Citizens'  Nat  Bank,  38  Ind.  App.  190,  76  N.  E.  811; 
Isphording  v.  Wolfe,  36  Ind.  App.  250,  75  N.  B.  598;  Ft  Wayne  Trust  Co. 
v.  Sihler,  34  Ind.  App.  140,  72  N.  E.  494;  Field  v.  Campbell,  164  Ind.  389,  72 
N.  E.  260,  108  Ann.  St  Rep.  301.  But  the  statute  prohibiting  a  married 
woman  to  bind  herself  as  surety  does  not  render  the  enforcement,  in  the 
courts  of  Indiana,  of  an  Illinois  contract  of  suretyship  entered  into  by  a  mar- 
ried woman  residing  in  that  state,  which  is  valid  by  the  laws  thereof,  against 
public  policy.  Garrigue  v.  Keller,  164  Ind.  676,  74  N.  E.  523,  69  L,  R.  A.  870, 
108  Am.  St.  Rep.  324. 

17  Rev.  Laws  Minn.  1905,  §  3607.    And  see  post,  p.  155. 

18  Post,  p.  156. 

19  Yale  y.  Dederer,  22  N.  Y.  450,  78  Am.  Dec.  216;  Conway  v.  Smith,  13 
Wis.  140;  Carpenter  v.  Mitchell,  50  111.  470;  Williams  v.  Huguuiu,  69  111. 
214,  18  Am.  Rep.  607;  Palliser  v.  Gurney,  L.  R.  19  Q.  B.  Div.  519;  Thompson 
V.  Minnich,  227  111.  430,  81  N.  E.  336  (holding  that  a  married  woman  could 
not  by  virtue  of  the  statute  contract  to  adopt  a  child  and  provide  for  it  out 
of  her  estate).    See,  also,  post,  p.  156. 


120  CONTRACTS,  CONVEYANCES,  AND   QUASI-CONTRACT.  (Ch.  4 


WITH   AS    A    SOLE    TRADER. 

63.  In  equity,  by  agreement  with  her  husband,  a  \rlfe  may  carry  on 

a  separate  trade  or  business,  and  contract  xvith  reference 
thereto,  and  the  stock  in  trade  and  profits  ivill  be  treated  as 
her  separate  property. 

(a)  As   against  the  husband,  though  the  agreement  xira.a  voluntary. 

(b)  As  against  the  husband's  creditors,  if  the  agreement  xiras  based 

on  a  valuable  consideration. 

64.  The  husband  will  be  liable  for  the  debts  of  his  wife's  separate 

business,  xrhen  it  is  conducted  ivith  his  express  consent,  or 
w^here  his  consent  may  be  implied;  as  where  he  takes  part  in 
its  management,  or  shares  in  its  profits.  But  he  is  not  liable 
if  it  is  conducted  w^ithont  his  consent,  express  or  implied. 

While  at  common  law  a  wife  could  make  no  contracts,  and  her 
husband  was  entitled  to  her  separate  earnings,  she  was  nevertheless, 
by  the  aid  of  equity,  enabled  to  carry  on  a  separate  trade  or  busi- 
ness. When  a  husband  has  agreed  with  his  wife  that  she  may  carry 
on  a  separate  trade  for  her  own  use  and  benefit,  equity  will  protect 
the  wife's  interests,  and  treat  the  husband,  when  no  trustees  have 
been  appointed,  as  trustee  for  the  wife  as  to  her  stock  in  trade  and 
the  profits  of  the  business.^"  Where  the  agreement  is  supported  by  a 
valuable  consideration,  it  will  be  supported  in  favor  of  the  wife  even 
against  her  husband's  creditors. ^^  If  the  agreement  is  entered  into 
before  marriage,  and  in  consideration  thereof,  the  marriage  is  a 
valuable  consideration.  If  it  is  not  entered  into  until  after  marriage, 
there  must  be  some  other  consideration.  The  husband's  agreement 
may  be  either  in  express  words  or  may  be  established  from  his  ac- 
quiescence in  his  wife's  acts.^^  He  may,  however,  withdraw  his  con- 
sent at  any  time,  unless  supported  by  a  valuable  consideration,  and  as- 


zoMacq.  Husb.  &  W.  328;  Story,  Eq.  Jur.  §  1387;  Ashworth  v.  Outram, 
5  Ch.  Div.  923 ;  Partridge  v.  Stocker,  36  Vt  108,  84  Am.  Dec.  664 ;  Jiunes  v. 
Taylor,  43  Barb.  (N.  Y.)  530;  Penn  v.  Whitehead,  17  Grat.  (Va.)  503,  94  Am. 
Dec.  478.  By  the  "custom  of  London"  a  wife  could  trade  as  a  feme  sole.  2 
Roper,  Husb.  &  W.  124. 

21  Story,  Eq.  Jur.  §§  1385-1387;  2  Roper,  Husb.  &  W.  171;  Penn  v.  White- 
head, 17  Grat.  (Va.)  503,  94  Am.  Dec.  478. 

2  2  Ashworth  v.  Outram,  5  Ch.  Div.  923;  Partridge  v.  Stocker,  36  Vt.  108, 
84  Am.  Dec.  664;  Tillman  v.  Shackleton,  15  Mich.  447,  93  Am.  Dec.  198; 
Jones  V.  Wocher,  90  Ky.  230,  13  S.  W.  911. 


§§    63-64)  WIFE   AS   A   SOLE   TRADER.  121 

sert  his  common-law  rights.*'  Where,  under  such  agreement,  the 
property  is  vested  in  a  trustee,  it  will  be  supported  in  law  as  well  as 
in  equity.^* 

While  the  wife  may  conduct  a  separate  business  under  an  agree- 
ment with  her  husband  which  would  be  supported  in  equity  as 
against  her  husband,  nevertheless  the  debts  incurred  in  such  business, 
although  contracted  in  the  name  of  the  wife,  are  his  debts,  and  he  is 
liable  for  them;  ^'  and  where  there  is  no  agreement,  if  he  participates 
in  the  benefits  of  the  business,^®  or  assists  her  in  the  management  of 
it,  he  thereby  ratifies  her  authority  to  incur  debts,  and  renders  him- 
self liable  for  them.^^  But  when  he  has  no  connection  with  the  busi- 
ness, and  there  is  no  evidence  that  he  ever  assented  to  it,  he  is  not 
liable  for  debts  contracted  by  the  wife  in  its  management.^* 

Under  Modern  Statutes. 

The  wife's  right  to  conduct  a  separate  business  is  generally  con- 
firmed and  regulated  by  statute  in  the  various  states.  In  some  instan- 
ces married  women  are  permitted  to  trade  as  if  unmarried,^"  while 
in  others  her  capacity  to  act  as  sole  trader  is  limited  and  conditions 
imposed  requiring  the  consent  of  the  husband,  judicial  permission, 
or  the  like.^"  The  general  property  acts  do  not  as  a  rule  authorize 
her  to  engage  in  trade  or  business  on  her  own  account,  except  in 
so  far  as  she  is  allowed  to  contract  in  relation  to  her  separate  prop- 
erty.'^ 

23Cropsey  v.  McKinney,  30  Barb.  (N.  Y.)  47;    Oonkling  v.  Doul,  67  111.  355. 
24  Story,  Eq.  Jur.  §§  1385,  1386. 

2  5  Cropsey  v.  McKinney,  30  Barb.  (N.  Y.)  47;  Lovett  v.  Robinson,  7  How. 
Prac.  (N.  Y.)  105. 

26  Macq.  Husb.  &  W.  333;    Petty  v.  Anderson,  3  Bing.  170. 

27  Curtis  V.  Engel,  2  Sandf.  Ch.  (N.  Y.)  287. 

28  2  Roper,  Husb.  &  W.  c.  18,  §  4;  Tuttle  v.  Hoag,  46  Mo.  38,  2  Am.  Rep. 
481;    Jenkins  v.  Flinn,  37  Ind.  349. 

29Trieber  v.  Stover,  30  Ark.  727;  Tallman  v.  Jones,  13  Kan.  438;  Wayne 
V.  Lewis  (Pa.)  16  Atl.  862;  Norwood  v.  Francis,  25  App.  D.  C.  463;  Elliott 
V.  Hawley,  34  Wash.  585,  76  Pac.  93,  101  Am.  St.  Rep.  1016;    Scott  v.  Gotten, 

91  Ala.  623,  8  South.  783. 

30  Snow  V.  Sheldon,  126  Mass.  332,  30  Am.  Rep.  684;  Lockwood  v.  Corey, 
150  Mass.  82,  22  N.  E.  440 ;   Cruzen  v.  McKaig,  57  Md.  454 ;    Azbill  v.  Azbill, 

92  Ky.  154,  17  S.  W.  284 ;  Horton  v.  Hill,  138  Ala.  625,  36  South.  465 ;  Wil- 
liams V.  Walker,  111  N.  C.  604,  16  S.  E.  706;  McDonald  v.  Rozen,  8  Idaho, 
352,  69  Pac.  125;  Taylor  v.  Minigus,  66  111.  App.  70.  See,  also,  the  statutes 
of  the  various  states. 

31  Kuster  v.  Dickson  (C.  C.)  45  Fed.  91;    Hitchcock  v.  Richold,  5  Mackey 


122  CONTRACTS,  CONVEYANCES,  AND   QUASI-CONTRACT.  (Ch.  4 

When  a  married  woman  is  by  statute  authorized  to  carry  on  a 
trade  or  business,  she  may  purchase  goods  on  credit,'^  execute  notes,^^ 
appoint  agents,'*  form  partnerships  '"  and  corporations,'*  and  gen- 
erally perform  such  acts  as  are  necessarily  incident  to  the  business. 


CONVEYANCES,  SAIiES,  AND  GIFTS  BY  WIFE. 

65.  AT    COMMON    LiAW — At    common    law,    a    married    woma.n    conld 

not,  by  a  conveyance,  either  transfer  her  ovim  real  property, 
or  bar  her  right  of  do^srer  in  the  real  property  of  her  husband. 

66.  IN    EQUITY— In   equity,   in  most  jurisdictions,   it   is   held  that   a 

married  xcoman  has  the  power  to  convey  or  otherwise  dis- 
pose of  her  equitable  separate  estate,  real  or  personal,  unless 
prohibited  by  the  instrument  creating  it.  In  all  jurisdic- 
tions she  has  the  poxirer  if  conferred  by  the  instrument  creat- 
ing it. 

67.  BY  STATUTE — Under  modem  statutes  married  women  generally 

have  the  po'wer  to  dispose  of  their  separate  property,  real  or 
personaL 

68.  Statutes   have    very    generally    given    them    the    power    to    convey 

their  ov7n  real  estate,  and  to  bar  their  right  to  dower  in  the 
real  estate  of  their  husbands  by  joining  ivith  them  in  con- 
veyances. Certain  formalities  in  the  execution  of  the  convey- 
ance are  required,  and  these  must  be  strictly  observed. 

Neither  a  conveyance  of  land,  nor  a  sale  and  transfer  of  personal 
property,  without  covenants  or  warranties,  nor  a  gift,  is  a  contract, 
for,  while  there  is  an  agreement,  the  agreement  transfers  rights  in 
rem  only,  without  contemplating,  or  even  for  a  moment  creating,  a 
right  in  personam.'^  Conveyances  and  transfers  must,  therefore,  be 
dealt  with  separately  from  contracts,  and  not  as  contracts. 

(D.  C.)  414;  Glover  v.  Alcott,  11  Mich.  470;  Taylor  v.  Wands,  55  N.  J.  Eq. 
491,  37  Atl.  315,  62  Am.  St.  Rep.  818. 

32Tallman  v,  Jones,  13  Kan.  438. 

3  3  Barton  v.  Beer,  35  Barb.  (N.  Y.)  78.  See,  also,  Bovard  v.  Kettering,  101 
Pa,  181;   Frecking  v.  Rolland,  53  N.  Y.  422. 

84  Taylor  v.  Wands,  55  N.  J.  Eq.  491,  37  Atl.  315,  02  Am.  St.  Rep.  818. 

SB  Norwood  v.  Francis,  25  App.  D.  C.  4G3 ;  Elliott  v.  Hawley,  34  Wash.  585, 
76  P.  93,  101  Am.  St.  Rep.  1016.  See,  also,  Code  Pub.  Gen.  Laws  Md.  1904, 
art.  45,  §  20. 

3  0  Good  Land  Co.  v.  Cole,  131  Wis.  467,  110  N.  W.  895,  120  Am.  St  Rep. 
1056. 

87  Anson,  Cont.  p.  3 ;   Clark,  Cont.  p.  12. 


§§    65-68)  CONVEYANCES,  SALES,  AND   GIFTS   BY    WIFE.  123 

At  Common  Law. 

At  common  law  a  married  woman  could  not,  either  by  her  own  con- 
veyance or  by  uniting  with  her  husband  in  a  conveyance,  bar  herself 
or  her  heirs  of  any  estate  of  which  she  was  seised  in  her  own  right, 
or  of  her  right  of  dower  in  the  real  estate  of  her  husband.^®  A  con- 
veyance of  her  land  by  a  married  woman  was  absolutely  void  as  to 
her.^®  A  conveyance  by  her  jointly  with  her  husband,  whether  of  her 
own  or  of  her  husband's  land,  was  considered  as  the  act  of  the  hus- 
band only,  and  the  law  restrained  its  operation  to  the  husband's  in- 
terest, just  as  if  he  alone  had  executed  it.*"  "This  disability  is  suppos- 
ed to  be  founded  on  the  principle  that  the  separate  legal  existence  of 
the  wife  is  suspended  during  the  marriage,  and  is  strengthened  by 
the  consideration  that,  from  the  nature  of  the  connection,  there  is 
danger  that  the  influence  of  the  husband  may  be  improperly  exerted 
for  the  purpose  of  forcing  the  wife  to  part  with  her  rights  in  his 
favor."  *^  The  only  mode  in  which  a  feme  covert  could  convey  her 
real  estate  at  common  law  was  by  uniting  with  her  husband  in  levying 
a  fine,  which  was  a  solemn  proceeding  of  record,  in  the  face  of  the 
court,  in  which  the  judges  were  supposed  to  watch  over  and  protect 
the  rights  of  the  wife,  and  to  ascertain  by  a  private  examination  that 
her  joining  in  the  act  was  voluntary.*^  Such  was  the  doctrine  of  the 
common  law. 

At  a  very  early  date,  and  long  before  any  statute  on  the  subject, 
the  custom  arose  in  some  states  for  married  women  to  convey  their 
real  estate  by  deed  in  which  the  husband  joined,*'  and  the  subse- 
quent statutes  as  a  rule  really  enacted  what  had  long  been  recog- 
nized as  the  customary  law.** 

88  Martin  v.  Dwelly,  6  Wend.  (N.  Y.)  9,  21  Am.  Dec.  24." ;  Hollingsworth 
V.  McDonald,  2  Har.  &  J.  (Md.)  230,  3  Am.  Dec.  545. 

3  0  Hoy t  V.  Swar,  53  111.  134;  Fowler  v.  Shearer,  7  Mass.  14;  Ooncord 
Bank  v.  Bellis,  10  Cush.  (Muss.)  276 ;    Albany  Fire  Ins.  Co.  v.  Bay,  4  N.  Y.  9. 

40  Albany  Fire  Ins.  Co,  v.  Bay,  4  N.  Y.  9;  Martin  v.  Dwelly,  G  Weud.  (N. 
Y.)  9,  21  Am.  Dec.  245. 

41  Per  Sutherland,  J.,  in  ]Martin  v.  Dwelly,  6  Wend.  (N.  Y.)  9,  21  Am. 
Dec.  245. 

42  2  Inst.  515;  1  Vent.  121a;  Martin  v.  Dwelly,  6  Weud.  (N.  Y.)  9,  21  Am. 
Dec.  245. 

43  Shaw  V.  Russ,  14  Me.  432;  Fowler  v.  Shearer,  7  Mass.  14;  Gordon  v. 
Haywood,  2  N.  H.  402;    Durant  v.  Ritchie,  4  Mason,  45,  Fed.  Cas.  No.  4,190. 

44Bressler  v.  Kent,  Gl  111.  42G,  14  Am.  Rep.  G7;  Althen  v.  Tarbox,  48 
Minn.  18,  50  N.  W.  1018,  31  Am.  St.  Rep.  616. 


124  CONTRACTS,  CONVETANCES,  AND   QUASI-CONTRACT.  (Ch.  4 

Since  a  wife's  personal  property  in  possession  vested  in  her  hus- 
band at  common  law,  no  question  as  to  her  power  to  transfer  it 
could  well  arise.*"  So,  too,  she  could  not  assign  her  choses  in  ac- 
tion so  as  to  defeat  his  right  to  reduce  them  to  his  possession.*' 

In  Equity. 

A  court  of  equity  has  no  more  power  than  a  court  of  law  to  recog- 
nize a  conveyance  by  a  married  woman  as  binding  upon  her,  unless  it 
conveys  her  equitable  separate  estate.  In  the  latter  case  the  con- 
veyance may  be  upheld.  The  doctrine  of  the  wife's  equitable  sepa- 
rate estate  will  be  fully  considered  in  a  separate  chapter.  It  is  suffi- 
cient to  say  here  that  in  most  jurisdictions  it  is  held  that  a  married 
woman  has,  as  an  incident  to  her  separate  estate,  the  power  to  dis- 
pose of  it  by  conveyance  or  otherwise,  even  though  this  power  is  not 
expressly  conferred  by  the  instrument  creating  the  estate,  provided 
it  is  not  expressly  excluded  by  the  instrument.  In  some  jurisdictions 
it  is  held  that  the  power  must  be  conferred  in  the  creation  of  the 
estate.  In  none  does  the  power  exist  if  excluded  in  the  creation  of 
the   estate.*^ 

Under  Modern  Statutes. 

In  all  of  the  states  the  common-law  rules  prohibiting  conveyances 
by  a  married  woman,  and  those  giving  her  personal  property  to  her 
husband,  have  been  greatly  modified  by  statute.  In  some  states  she 
now  has  almost  as  much  power  as  a  feme  sole  in  respect  to  her  real 
and  personal  property.  In  all  states  she  has  more  or  less  power 
to  dispose  of  it.  The  extent  of  this  power  will  be  shown  in  a  subse- 
quent chapter.*® 

Mode  of  Conveyance  Where  the  Power  Exists. 

Assuming  that  she  has  the  power  to  make  a  conveyance,  the  ques- 
tion next  arises  as  to  the  mode  in  which  she  must  exercise  it.  In  all  of 
the  states  statutes  have  been  enacted  changing  the  common  law  in 
so  far  as  it  prevented  a  married  woman  from  making  a  valid  convey- 
ance, and  allowing  her  to  convey  her  own  real  estate,  or  to  bar  her 
right  of  dower  in  her  husband's  real  estate  by  uniting  with  him  in 
a   conveyance  thereof.**     These   statutes,   while   they   vary  to  some 

4B  Ante,  p.  92.  ««  Ante,  p.  96.  *"'  Post,  p.  144.  *«  Post,  p.  155. 

4  8  Under  Code  Tenn.  1858,  §  2076,  authorizing  a  married  woman  to  convey 
real  estate  by  deed  in  which  her  husband  joins,  a  deed  by  a  married  woman 
conveying  to  her  husband  lands  which  she  holds  in  trust  for  him,  is  not  void 
because  he  does  not  join  therein.     Insurance  Co.  of  Tennessee  v.  Waller,  116 


§  69)  CONTRACTS  OF  HUSBAND,  125 

extent  in  the  different  states,  very  generally  require  the  wife  to 
acknowledge  the  conveyance  with  certain  formalities,  separate  and 
apart  from  her  husband.  In  this,  as  in  all  other  respects,  the  direc- 
tions of  the  statute  must  be  strictly  complied  with,  or  the  convey- 
ance will  be  ineffectual  as  against  the  wife.  A  deed  not  acknowl- 
edged by  the  wife  according  to  the  directions  of  the  statute  is,  as  to 
her,  absolutely  void,  and  will  not  even  be  enforced  against  her  in 
equity  as  an  agreement  to  convey.^" 


CONTRACTS   OF  HUSBAND. 

69.  A  man's  poiver  to  contract  is  not  affected  by  his  marriage,  ex- 
cept tliat  he  cannot  by  bis  contract  deprive  tbe  -wife  of  rights 
^irhioh  she  acquires  in  his  property  by  virtue  of  the  marriage. 

It  is  the  legal  existence  of  the  woman  only  that  is  affected  by 
marriage.  The  man's  legal  capacity  remains  virtually  unimpaired. 
He  has  substantially  the  same  power  to  enter  into  contracts  as 
before  marriage.  The  only  restrictions  on  his  power  to  contract 
which  are  imposed  by  marriage  result,  not  from  any  incapacity  in 
himself,  but  from  the  fact  that  by  law  the  marriage  confers  upon  the 
wife,  as  has  been  seen,  certain  rights  in  her  husband's  property. 
He  cannot  defeat  these  rights  by  any  contract  entered  into  by  himself 
alone.  Thus  he  cannot,  by  a  sale  of  his  land,  defeat  her  right  to 
dower  therein  if  she  survives  him. 


Tenn.  1,  95  S.  W.  811,  115  Am.  St.  Rep.  763.     See,  also,  Jordan  v.  Jackson,  76 
Neb.  15,  106  N.  W.  999,  rehearing  denied  107  N.  W.  1047. 

6  0  Martin  v.  Dwelly,  6  Wend.  (N.  Y.)  9,  21  Am.  Dec.  245;  Butler  v.  Buck- 
ingham, 5  Day  (Ck>nn.)  492,  5  Am.  Dec.  174;  Grove  v.  Todd,  41  Md.  633.  20 
Am.  Rep.  76;  Hollingsworth  v.  McDonald,  2  liar.  &  J.  (Md.)  230,  3  Am.  Dec. 
545;  Townsley  v.  Chapin,  12  Allen  (Mass.)  476;  Bressler  v.  Kent,  61  111.  426, 
14  Am.  .Rep.  67 ;  Rust  v.  Goff,  94  Mo.  511,  7  S.  W.  418 ;  Laidley  v.  Central 
Land  Co.,  30  W.  Va.  505,  4  S.  E.  705 ;  Kimmey  v.  Abney  (Tex.  Civ.  App.)  107 
S..  W.  885 ;  Simpson  v.  Belcher,  61  W.  Va.  157,  56  S.  E.  211 ;  Tillery  v.  Land, 
136  N.  G.  537,  48  S.  E.  824.  As  to  the  effect  of  immaterial  departures  from 
statutory  formalities,  see  Homer  v.  Schonfeld,  84  Ala.  313,  4  South.  105;  Hol- 
llngswortJi  V.  McDonald,  2  Har.  &  J.  (Md.)  230,  3  Am.  Dec  546. 


126  CONTRACTS,  CONVEYANCES,  AND   QUASI-CONTRACT.  (Ch,  4 


CONTRACTS  BY  WIFE  AS  HUSBAND'S  AGENT. 

70.  IN  GENERAIi— The  wife  may,  when  expressly  or  impliedly  author- 

ized by  the  husband,  act  as  his  agent  in  the  making  of  con- 
tracts for  him;  and  she  may  become  his  agent  by  estoppel  or 
by   ratification,    as   in   other   cases    of   agency. 

(a)  If   they    are    living    together,    the   fact    of    cohabitation    raises    a 

presumption  of  authority  in  fact ;  but  this  presumption  may 
be  rebutted. 

(b)  If    they    are    living    apart,    the    presumption    is    against    her    au- 

thority to  bind  him,  and  the  burden  is  on  the  person  dealing 
\srith  her  to  shoxir  such  authority. 

71.  AGENCY   OF  NECESSITY— As  a  rule,  where  a  husband  fails   to 

provide  for  his  w^ife,  she  becomes  his  agent  of  necessity  to 
purchase  necessaries  on  his  credit.  But  the  rule  is  subject  to 
qualification ; 

(a)  He  is  liable,  under  such  circumstances, 

(1)  Where  he  lives  with  his  wife. 

(2)  Where  they  live  apart,  either  through  his  fault  or  by  agree- 

ment, and  w^ithout  fault  on  her  part. 

(b)  He  is  not  liable 

(1)  Where    she    leaves   him    without    cause,   unless    she    oflPers    to 

return,  and  he  refuses  to  receive  her. 

(2)  Where  the  credit  is  given  to  her,  and  not  to  hint. 

(3)  Where   she  has  a  sufficient  separate  income. 

(4)  W^here  she  has  agreed  to  accept  a  certain  amount  from  him, 

and  he  pays  it. 

The  rule  of  the  common  law  as  to  the  power  of  the  wife  to  con- 
tract is  so  far  modified  as  to  enable  a  wife  to  enter  into  a  contract 
as  the  agent  of  her  husband  when  he  has  given  her  express  author- 
ity to  bind  him,  or  has  impliedly  held  her  out  as  having  such  authori- 
ty.'*^ Her  agency  is,  like  that  of  any  other  agent,  a  question  of  fact, 
and  may  be  inferred  from  the  ostensible  authority  with  which  the 
husband  has  clothed  her.^=^  Not  only  is  the  wife  general  agent  for 
the  husband  with  reference  to  those  household  matters  that  are  usu- 
ally under  the  wife's  control,"^  but  if  the  husband  absents  himself 


Bi  Add.  Cont.  135. 

B2  McGeorge  v.  Egan,  7  S:ott,  112;  Mackinley  v.  McGregor,  3  Whart.  (Pa.) 
369,  31  Am.  Dec.  522;  Bergh  v.  Warner,  47  Minn.  250,  50  N.  W.  77,  28  Am. 
St.  Rep.  3G2;    Cox  v.  Hoffman,  20  N.  C.  319;    Gray  v.  Otis,  11  Vt  G28. 

5  3  Freestone  v.  Butcher,  9  Car.  &  P.  643;  Ruddock  v.  Marsh,  1  Hurl.  & 
N.  GOl. 


§§   70-71)         CONTRACTS  BY  WIFE   AS   HUSBAND's  AGENT.  127 

from  home,  keeping  his  whereabouts  unknown  and  leaving  his  prop- 
erty in  the  care  of  his  wife,  she  is  his  agent  to  do  those  things  cus- 
tomarily delegated  to  wives  having  charge  of  property."*  The  most 
important  class  of  cases  in  which  the  wife  may  render  her  hus- 
band liable  on  the  theory  of  agency  is  cases  in  which  she  purchas- 
es necessaries,  and  pledges  his  credit  therefor.  In  these  cases  the 
power  of  the  wife  and  the  liability  of  the  husband  will  vary  ac- 
cording to  the  circumstances.  Where  he  supports  her,  she  has  no 
power  to  pledge  his  credit,  even  for  necessaries,  unless  there  is  au- 
thority in  fact.  If  he  fails  to  support  her,  she  has  the  absolute  right 
to  pledge  his  credit  for  necessaries,  whether  she  has  authority  in 
fact  or  not.  The  law,  as  applied  to  cases  in  which  the  wife  is  sup- 
ported by  the  husband,  will  first  be  explained,  and  then  cases  in 
which  he  neglects  to  provide  for  her  will  be  considered.  Final- 
ly we  shall  ascertain  what  things  are  to  be  regarded  as  necessaries. 

Agency  by  Estoppel. 

Marriage  and  cohabitation  do  not,  as  a  matter  of  law,  regardless 
of  the  facts,  imply  authority  in  the  wife  to  pledge  her  husband's 
credit."''  The  husband  may,  however,  so  act  as  to  estop  himself 
from  denying  his  wife's  agency.  If  she  is  generally  allowed  to  deal 
with  a  tradesman,  the  husband  will  be  considered  to  have  held  her 
out  as  his  agent,  and  will  be  liable  for  her  purchases.  This  doctrine 
is  not  limited  to  purchases  of  necessaries  by  the  wife.  The  extent 
of  the  estoppel  will  depend  upon  the  extent  of  the  dealings  which 
the  husband  has  thus  authorized."*  "If  a  tradesman  has  had  deal- 
ings with  the  wife  upon  the  credit  of  the  husband,  and  the  hus- 
band has  paid  him  without  demurrer  in  respect  to  such  dealings,  the 
tradesman  has  the  right  to  assume,  in  the  absence  of  notice  to  the 
contrary,  that  the  authority  of  the  wife  which  the  husband  has  recog- 
nized continues.     The  husband's  quiescence  is  in  such  cases  tanta- 


84  Evans  V,  Crawford  County  Farmers'  Mut.  Pire  Ins.  Co.,  130  Wis.  189, 
109  N.  W.  952,  9  L.  R.  A.  (N.  S.)  485,  118  Am.  St.  Rep.  1009.  In  this  case  it 
was,  however,  held  further  that  the  authority  of  a  wife  as  agent  for  her 
husband  by  implication  of  law  does  not,  under  any  circumstances,  extend  to 
selling  and  conveying  his  realty. 

6  5  McNemar  v.  Cohn,  115  111.  App.  31. 

66  Debenham  v.  Mellon,  6  App.  Cas.  24,  5  Q.  B.  Div.  403;  Penner  v.  Lewis, 
10  Johns.  (N.  Y.)  38;  Benjamin  v.  Benjamin,  15  Conn.  347,  39  Am.  Dee.  384; 
Gates  V,  Brower,  9  N.  Y.  205,  59  Am.  Dec.  530;  Keller  v.  Phillips,  39  N.  Y. 
B51 ;   Snell  v.  Stone,  23  Or.  327,  31  Pac.  GG3. 


128  CONTRACTS,  CONVEYANCES,  AND   QUASI-CONTRACT.  (Ch.  4 

mount  to  acquiescence,  and  forbids  his  denying  an  authority  which 
his  own  conduct  has  invited  the  tradesman  to  assume."  " 

Agency  by  Ratification. 

The  husband  may,  under  the  doctrine  of  agency  by  ratification, 
become  Hable  on  contracts  made  by  his  wife  as  his  agent,  by  ratify- 
ing them.  If,  for  instance,  he  ratifies  a  purchase  made  by  his  wife 
on  his  credit,  he  is  just  as  Hable  as  if  he  had  previously  authorized 
her  to  pledge  his  credit.^'  And  this  necessarily  applies  not  only 
where  the  contract  was  for  the  purchase  of  necessaries  for  the  house- 
hold, but  extends  to  other  contracts  as  well.'*"  Knowledge  that  his 
wife  has  purchased  goods,  and  failure  to  disapprove  of  the  pur- 
chase, is  a  ratification.*"  He  cannot  repudiate  a  purchase  by  the 
wife,  and  at  the  same  time  retain  the  property  purchased;  but  must 
return  it  if  it  is  in  existence.*^ 

Where  the  Wife  is  Supported  by  the  Husband — Agency  in  Pact. 

The  husband's  liability  for  goods  furnished  his  wife,  where  he 
supports  her,  rests  entirely  upon  the  theory  of  agency  in  fact.  If 
he  supports  her,  she  has  no  power  to  pledge  his  credit,  even  for 
necessaries,  unless  there  is  authority  in  fact.*=*     The  principal  ques- 


5T  Debenham  v.  Mellon,  6  App.  Oas.  24,  5  Q.  B.  Div.  403;  Bonwit,  Teller 
&  CJo.  V.  Lovett   (Sup.)  102  N.  Y.  Supp.  800. 

B8  Shuman  v.  Steinel,  129  Wis.  422,  109  N.  W.  74,  7  L.  R.  A.  (N.  S.)  1048, 
116  Am.  St  Rep.  961,  holding  that  where  a  wife,  assuming  to  act  as  her  hus- 
band's agent,  ordered  certain  books  from  plaintiff,  and  received  them,  and  the 
husband  subsequently,  with  knowledge  of  the  facts,  adopted  her  act  by  prom- 
ising to  pay  for  the  property  or  by  accepting  the  benefit  of  the  transaction, 
he  became  individually  liable  for  payment  of  the  debt.  But  where  a  wife 
makes  a  contract  in  her  own  name  for  improvements  on  her  husband's  home, 
not  as  his  agent,  he  is  not  bound  as  principal  by  ratification,  because  he  paid 
for  part  of  the  work.    Thompson  v.  Brown,  121  Ga.  814,  49  S.  E.  740. 

69  Conrad  v.  Abbott,  132  I^Iass.  330;  Day  v.  Burnham,  36  Vt  37;  Harden- 
brook  V.  Harrison,  11  Colo.  9,  17  Pac.  72. 

60  Seaton  v.  Benedict,  5  Bing.  28;  Lane  v.  Ironmonger,  13  Mees.  &  W.  3GS; 
Cothran  v.  Lee,  24  Ala.  380;  Woodward  v.  Barnes,  43  Vt.  330;  Ogden  v. 
Prentice,  33  Barb.  (N.  Y.)  160. 

61  Oilman  v.  Andrus,  28  Vt  241,  67  Am.  Dec.  713. 

6  2  Jolly  V.  Rees,  15  C.  B.  (N.  S.)  628;  Johnston  v.  Sumner,  3  Hurl.  &  N. 
261;  Steinfield  v.  Glrrard,  103  Me.  151,  68  Atl.  630;  Weingreen  v.  Beckton 
(Sup.)  ?02  N.  Y.  Supp.  520;  Keller  v.  Phillips,  39  N.  Y.  351;  Benjamin  v. 
Benjamin,  15  Conn.  347,  39  Am.  Dec.  384;  Debenham  v.  Mellon,  6  App.  Gas. 
24,  5  Q.  B.  Div.  408. 


§§   70-71)         CONTRACTS   BY   WIFE    AS   HUSBAND's   AGENT.  129 

tion  in  these  cases  is  as  to  the  presumption  of  authority.  In  other 
respects,  the  law  is  the  same  as  in  the  case  of  any  other  contr?>rf 
entered  into  by  the  wife  as  agent  of  her  husband. 

Same — Where  They  are  Living  Together. 

Where  the  husband  and  wife  are  living  together,  a  presumption 
arises,  from  the  fact  of  cohabitation,  that  the  husband  has  in  fact 
given  the  wife  authority  to  purchase  goods  on  his  credit. ^^  The 
wife  is  general  agent  of  the  husband  with  reference  to  those  mat- 
ters which  are  usually  under  control  of  the  wife,  such  as  the  pur 
chase  of  clothes  for  herself,  groceries  and  provisions  for  the  family, 
and  the  engaging  of  household  servants.^*  In  other  words,  wher: 
a  tradesman  brings  an  action  against  the  husband,  for  articles  fur- 
nished the  wife  on  the  husband's  credit,  he  makes  out  a  prima  facie 
case  by  showing  that  the  wife  was  living  \yith  her  husband,  and  tha' 
the  articles  were  in  kind,  quality,  and  quantity  suitable  to  the  hus- 
band's fortune  and  station  in  life.*'  This  presumption,  however,  as 
already  stated,  is  one  of  fact,  and  not  of  law.  Cohabitation  does 
not  necessarily,  but  only  prima  facie,  empower  the  wife  to  render 
her  husband  liable,  even  for  necessaries.  He  may  rebut  this  pre- 
sumption by  showing  that  she  was  forbidden  to  pledge  his  credit.^* 
And,  since  his  liability,  where  he  suitably  maintains  her,  is  based  on 
the  theory  of  an  agency  in  fact,  the  tradesman's  ignorance  of  the 
fact  that  the  wife  had  been  forbidden  to  pledge  his  credit  is  alto- 


63  The  statute  authorizing  married  women  to  contract  does  not  abrogate 
the  common-law  liability  of  the  husband  for  necessary  comforts  and  supplies 
furnished  the  wife,  suitable  to  their  condition  and  degree  in  life.  Pouder  v 
D.  W.  Morris  &  Bro.  (Ala.)  44  South.  651.  To  the  same  effect,  see  Ruhl  v 
Heintze,  97  App.  Div.  442,  89  N.  Y.  Supp.  1031.  Where  there  has  been  no 
©pen  separation,  a  presumption  arises  that  the  husband  and  wife  are  livinj? 
together.  Ball  v.  Lovett  (Sup.)  98  N.  Y.  Supp.  815 ;  Stouteuborough  v.  Ram 
mel,  123  111.  App.  487. 

6*  Freestone  v.  Butcher,  9  Car.  &  P.  643;  Ruddock  v.  Marsh,  1  Hurl.  &  N. 
601;    Wagner  v.  Nagel,  33  Minn.  348,  23  N.  W.  308. 

65Dcbenham  v.  Mellon,  6  App.  Cas.  24,  5  Q.  B.  Div.  403;  Woodward  v. 
Barnes,  43  Vt.  330;  Keller  v.  Phillips,  39  N.  Y.  351;  Alley  v.  Winn,  1.34 
Mass.  77,  45  Am.  Rep.  297;  Feiner  v.  Boynton,  73  N.  J.  Law,  136,  62  Atl 
420;  Ball  v.  Lovett  (Sup.)  98  N.  Y.  Supp.  815;  Stouteuborough  v.  RammeJ, 
123  111.  App.  487. 

«6  Jolly  V.  Rees,  15  C.  B.  (N.  S.)  628;  Debenham  v.  Mellon,  6  App.  Cas. 
24,  5  Q.  B.  Div.  403;  Woodward  v.  Barnes,  43  Vt.  330;  Keller  v.  Phillips,  3? 
N.  Y.  351. 

TijrF.P.&  D.Rel.(2d  Ed.)— 9 


130  CONTRACTS,  CONVEYANCES,  AND   QUASI-CONTRACT.  (Ch.  4 

gether  immaterial,  provided,  of  course,  as  heretofore  explained,  the 
husband  has  not  so  held  out  his  wife  as  authorized  to  pledge  his 
credit  as  to  be, estopped  to  deny  her  agency.''^  It  is  contended,  it 
was  said  in  a  leading  English  case,  "that  there  is  a  presumption  that 
a  wife  living  with  her  husband  is  authorized  to  pledge  her  hus- 
band's credit  for  necessaries ;  that  the  goods  supplied  by  the  plain- 
tiffs were,  as  it  is  admitted  they  were,  necessaries ;  and  that,  as 
a  consequence,  an  implied  authority  is  established.  This  contention 
is  founded  upon  an  erroneous  view  of  what  is  meant  by  the  term 
'presumption'  in  cases  where  it  has  been  used  with  reference  to 
a  wife's  authority  to  pledge  her  husband's  credit  for  necessaries. 
There  is  a  presumption  that  she  has  such  authority  in  the  sense 
that  a  tradesman  supplying  her  with  necessaries  upon  her  hus- 
band's credit,  and  suing  him,  makes  out  a  prima  facie  case  against 
him  upon  proof  of  that  fact  and  of  the  cohabitation.  But  this  is 
a  mere  presumption  of  fact,  founded  upon  the  supposition  that 
wives  cohabiting  with  their  husbands  ordinarily  have  authority 
to  manage  in  their  own  way  certain  departments  of  the  household 
expenditure,  and  to  pledge  their  husbands'  credit  in  respect  of  mat- 
ters coming  within  those  departments.  Such  a  presumption  or  prima 
facie  case  is  rebuttable,  and  is  rebutted  when  it  is  proved  in  the 
particular  case,  as  here,  that  the  wife  has  not  that  authority.  If 
this  were  not  so,  the  principles  of  agency,  upon  which,  ex  hypothesi, 
the  liability  of  the  husband  is  founded,  would  be  practically  of  no 
effect."  «« 

Same — Where  They  are  Living  Apart. 

Where  a  wife  is  living  apart  from  her  husband,  there  is  no  pre- 
sumption that  she  has  any  authority  in  fact  to  pledge  his  credit 
even  for  necessaries."'  On  the  contrary,  the  presumption  is  that  she 
has  not.  The  person  who  sells  to  her  under  such  circumstances 
either  sells  to  her  as  a  feme  sole,  or,  if  he  knows  that  she  is  married, 

0  7  Ante,  p.  127.  As  was  pointed  out  in  Debenham  v.  Mellon,  6  App.  Cas. 
24,  5  Q.  B.  Div.  403,  the  statement  in  Johnson  v.  Sumner,  27  Law  J.  Exch. 
341,  that,  "if  a  man  and  his  wife  live  together,  it  matters  not  what  private 
arrangement  they  malce,  the  wife  has  all  the  usual  authorities  of  wife,"  ap- 
plied only  to  the  case  where  an  appearance  of  authority  has  been  created 
by  the  husband's  acts,  or  by  his  assent  to  the  acts  of  his  wife. 

0  8  Per  Thesiger,  L.  J.,  in  Debenham  v.  Mellon,  6  App.  Cas.  24,  5  Q.  B. 
Div.  403. 

69Rea  V.  Durkee,  2.5  111.  503;  Cany  v.  Patton,  2  Ashm.  (Pa.)  140;  Hass 
V.  Brady,  49  Misc.  Rep.  235,  96  N.  Y.  Supp.  449. 


§§    70-71)         CONTRACTS    BY    WIFE    AS   HUSBAND'S    AGENT.  131 

he  is  given  reason  to  suspect,  from  the  fact  of  her  Hving  apart  from 
her  husband,  that  her  relations  with  him  are  such  that  she  has 
not  been  authorized  to  pledge  his  credit.  Under  these  circumstan- 
ces it  is  incumbent  upon  the  tradesman,  in  order  to  hold  the  hus- 
band liable,  to  rebut  the  presumption  by  showing  authority  in  fact, 
or  else  to  bring  the  case  within  the  rules  to  be  presently  explained, 
giving  a  wife  absolute  power  to  bind  her  husband  where  he  neglects 
to  provide  for  her.'''* 

Where  the  Husband  Neglects  to  Support  the  Wife — Agency  of  Ne- 
cessity. 

Where  a  husband  neglects  to  provide  for  or  support  his  wife,  even 
if  they  are  cohabiting,  the  wife  has  an  absolute  right  to  pledge  his 
credit  for  necessaries.  She  has  this  right  even  though  there  is 
no  agency  in  fact,  for  the  agency  is  implied  in  law  without  regard 
to  the  fact.'^^  The  husband's  liability  is  based  on  the  theory  of 
agency,  but  the  agency  is  implied  as  a  matter  of  law  because  of  the 
husband's  legal  duty  to  support  his  wife.  The  husband  will  not  be 
liable  for  necessaries  purchased  by  his  wife  if  he  shows  that  credit 
was  given  to  the  wife  herself,^ ^  or  that  she  had  a  sufficient  separate 
income, ''*  or  that  he  made  her  a  sufficient  allowance.'* 

7  0  Johnson  v.  Sumner.  27  Law  J.  Exch.  341;  Walker  v.  Simpson,  7  Watts 
&  S.  (Pa.)  83,  42  Am.  Dec.  216;  Mitchell  v.  Treanor,  11  Ga.  324,  56  Am.  Dec. 
421;  Rea  v.  Durkee,  25  111.  503;  Stevens  v.  Story,  43  Vt.  327;  Sturtevant  v. 
Starin,  19  Wis.  26S;  Benjamin  v.  Dockham,  132  Mass.  181;  Inhabitants  of 
Sturbridge  v.  Franklin,  IGO  Mass.  149.  35  X.  E.  669;  Harttmann  v.  Tegart, 
12  Kan.  177 ;   Vusler  v.  Cox,  53  N.  J.  Law,  516,  22  Atl.  347. 

71  Eastland  v.  Bin-chell,  3  Q.  B.  Div.  436;  Seybold  v.  Morgan.  43  111.  App. 
39;  W.  &  J.  Sloane  v.  Boyer  (Sup.)  95  N.  Y.  Supp.  531;  Pierpont  v.  Wilson, 
49  Conn.  450;  Dexter  v.  Booth,  2  Allen  (Mass.)  559;  Raynes  v.  Bennett,  114 
Mass.  424 ;  Benjamin  v.  Dockham,  134  Mass.  418 ;  Watkins  v.  De  Armond,  89 
Ind.  553;  Eiler  v.  Crull,  99  Ind.  375;  Walker  v.  Laighton,  31  N.  H.  Ill; 
Ferren  v.  Moore,  59  N.  H.  106;  Keller  v.  Phillips,  39  N.  Y.  351;  Cromwell 
V.  Benjamin,  41  Barb.  (N,  Y.)  558;  Woodward  v.  Barnes.  43  Vt.  330;  Barr 
V.  Armstrong,  56  Mo.  577;  Fames  v.  Sweetser,  101  Mass.  78;  Bergh  v.  War- 
ner, 47  Minn.  250,  50  N.  W.  77,  28  Am.  St.  Rep.  362;  Devendorf  v.  Emerson, 
66  Iowa,  698,  24  N.  W.  515. 

7  2  Jewsbury  v.  Newbold,  26  Law  J.  Exch.  247;  Pearson  v.  Darrington,  32 
Ala.  227;  Stammers  v.  Macomb,  2  Wend.  (N.  Y.)  454;  Moses  v.  Fogartie,  2 
Hill  (S.  C.)  335;  Carter  v.  Howard,  39  Vt.  106;  Skinner  v.  Tirrell,  159  Mass. 
474,  34  N.  E.  692,  21  L.  R.  A.  673,  38  Am.  St.  Rep.  447. 

73  Freestone  v.  Butcher,  9  Car.  &  P.  643;  Swett  v.  Penrice,  24  Miss.  416; 
Weisker  v.  Lowenthal,  31  jNId.  413. 

74  Atkyns  v.  Pearce,  20  Law  J.  C.  P.  252;  Oatman  v.  Watrous,  120  App 
Div.  66,  105  N.  Y.  Supp.  174 ;   Harshaw  v.  Merryman,  18  Mo.  106. 


132  CONTRACTS,  CONVEYANCES,  AND   QUASI-CONTRACT.  (Ch.  4 

The  rule  applies  all  the  more  forcibly,  if  possible,  where  the 
husband  unlawfully  separates  from  his  wife  without  making  suit- 
able provision  for  her,  or  if  he,  by  his  conduct,  causes  her  to  leave 
him.''''  A  husband  is  bound  to  support  his  wife,  and  if  he  leaves 
her  without  the  means  of  subsistence  she  becomes  "an  agent  of 
necessity  to  supply  her  wants  upon  his  credit."  ^®  This  right  arises 
where  the  husband  has  driven  the  wife  away,  or  where  she  has 
left  him  in  consequence  of  ill  treatment  and  reasonable  and  well- 
grounded  apprehension  of  further  violence,^  ^  or  because  her  hus- 
band has  rendered  his  home  an  unfit  place  for  her  to  live,  as  by 
introducing  women  of  profligate  habits,^*  or  in  consequence  of  the 
commission  by  him  of  such  acts  as  would  entitle  her  to  a  divorce 
from  bed  and  board.''®  If  the  wife  leaves  her  husband  without  jus- 
tifiable cause,  she  forfeits  the  right  to  obtain  her  necessaries  at 
his   expense.^"     In   case   she   returns,   and   is   received   by   her  hus- 


T8  2  Kent,  Coram.  146;  Bolton  v.  Prentice,  2  Strange,  1214;  May  hew  v. 
Thayer,  8  Gray  (Mass.)  172;  Sultan  v.  Misrahi,  47  Misc.  Rep.  655,  94  N. 
Y.  Sup^.  519;  Wolf  v.  Schulman,  45  Misc.  Rep.  418,  90  N.  Y.  Supp.  363; 
Clothier  v.  Sigle,  73  N.  J.  Law,  419,  63  Atl.  865;  Eiler  v.  Crull,  99  Ind.  375; 
Snover  v.  Blair,  25  N.  J.  Law,  94 ;  Walker  v.  Laighton,  31  N.  H.  111.  As  to 
the  effect  of  an  offer  to  return,  see  note  80,  infra. 

7  6  Eastland  v.  Burchell,  3  Q.  B.  Div.  436.  And  Bee  Sultan  v.  Misrahi,  47 
Misc.  Rep.  655,  94  N.  Y.  Supp.  519. 

77  Houliston  V.  Smyth,  2  Car.  &  P.  22;  Baker  v.  Oughton,  130  Iowa,  35, 
106  N.  W.  272 ;    Reynolds  v.  Sweetser,  15  Gray  (Mass.)  78. 

7  8  Houliston  V.  Smyth,  2  Car.  &  P.  22;  Descelles  v.  Kadmus,  8  Iowa,  51; 
Kemp  V,  Downham,  5  Har.  (Del.)  417. 

7  9  Hancock  v.  Merrick,  10  Cush.  (Mass.)  41;  Rea  v.  Durkee,  25  111.  503; 
Barker  v.  Dayton,  28  Wis.  367,  383 ;   Thorpe  v.  Shapleigh,  67  Me.  235. 

80  Manby  v.  Scott,  1  Mod.  324;  Btherington  v.  Parrott,  2  Ld.  Raym.  1006; 
Kessler  v.  Kessler,  2  Cal.  App.  509,  83  Pac.  257;  Morgenroth  v.  Spencer,  124 
Wis.  504,  102  N.  W.  1086;  Bevier  v.  Galloway,  71  111.  517;  McCutchen  v.  Mc- 
Gahay,  11  Johns.  (N.  Y.)  281,  6  Am.  Dec.  373;  Harttmann  v.  Tegart,  12  Kan. 
177;  Collins  v.  Mitchell,  5  Har.  (Del.)  369;  Oiuson  v.  Heritage,  45  Ind.  73, 
15  Am.  Rep.  258;  Thome  v.  Kathan,  51  Vt.  520;  Belknap  v.  Stewart,  38 
Neb.  304,  56  N.  W.  881,  41  Am.  St.  Rep.  729;  Walker  v.  Laighton,  31  N.  H. 
Ill;  Steinfield  v.  Girrard,  103  Me.  151,  68  Atl.  030,  holding,  also,  that  the 
tradesman's  ignorance  of  the  separation  did  not  affect  the  rule.  In  Walker 
V.  Laighton,  31  N.  H.  Ill,  it  was  said:  "The  husband  who  has  causelessly 
deserted  his  wife  may  in  good  faith  seek  a  reconciliation,  and  if  the  wife, 
under  such  circumstances,  refuses  to  live  with  him  again,  without  good  cause, 
she  becomes  from  that  time  the  party  in  the  wrong,  and  has  no  longer  any 
authority  to  pledge  his  credit,  even  for  necessaries,  more  than  she  would 


I 


§§    70-71)         CONTRACTS    BY   WIFE    AS    HUSBAND's   AGENT.  133 

band,  the  right  revives,  but  only  as  to  future  necessaries.^^  This 
is  true  where  she  offers  to  return,  and  he  refuses  to  receive  her.^^  It 
follows  from  this  doctrine  that,  where  a  wife  elopes,  and  com- 
mits adultery,  she  loses  the  right  to  pledge  her  husband's  credit 
for  necessaries ;  ^'  and  this  has  been  held  to  be  true  even  where  the 
husband  committed  adultery  first,  and  turned  her  away.®*  Where, 
however,  he  has  connived  at  her  adultery,  it  is  no  defense  as  against 
his  liability. ^^  One  living  in  adultery  with  a  wife  who  has  left  her 
husband,  even  for  justifiable  reasons,  cannot  make  the  husband  H- 
able  for  necessaries  furnished  by  him.®^ 

Where  husband  and  wife  live  apart  by  mutual  agreement,  the 
husband's  liability  for  necessaries  furnished  her  continues  in  the 
absence  of  any  provision  for  her  support.^'^  It  also  continues  where 
he  has  agreed  to  make  her  an  allowance,  if  he  does  not  pay  it.®* 


have  had  if  she  had  herself  originally  left  him  without  cause.  *  *  ♦  And 
it  makes  no  difference  that  he  desires  her  to  change  her  residence,  and  to 
go  to  live  with  him  at  some  other  place,  not  unsuitahle  for  her  residence, 
since  he  has  the  right  to  choose  his  own  residence,  and  it  is  the  duty  of  the 
wife  and  children  to  conform  to  his  wishes  in  this  respect."  See,  also,  Rumney 
V.  Keyes,  7  N.  H.  571;  Kimball  v.  Keyes,  11  Wend.  (N.  Y.)  33. 

81  Oinson  v.  Heritage,  45  Ind.  73,  15  Atn.  Rep.  258;  Williams  v.  Prince, 
3  Strob.  (S.  G.)  490 ;  Reese  v.  Chilton,  26  Mo.  598.  There  is  authority  to  the 
effect  that  the  husband  will  also  be  liable  for  debts  contracted  during  sepa- 
ration.    Robison  v.  Gosnold,  6  Mod.  171. 

82  Manby  v.  Scott,  1  Mod.  124,  131;  McGahay  v.  Williams,  12  Johns.  (N.  Y.) 
293;  McGutchen  v.  McGahay,  11  Johns.  (N.  Y.)  281,  6  Am.  Dec.  373 ;  Cunning- 
ham V.  Irwin,  7  Serg.  &  R.  (Pa.)  247,  10  Am.  Dec.  458;  Henderson  v.  String- 
er, 2  Dana  (Ky.)  291 ;    Clement  v.  Mattison,  3  Rich.  Law  (S.  C.)  93. 

83  Ham  V.  Toovey,  Selw.  N.  P.  271;  Morris  v.  Martin,  1  Strange,  647;  Em- 
mett  V.  Norton,  8  Gar.  &  P.  506 ;  Hardie  v.  Grant,  Id.  512 ;  Cooper  v.  Lloyd, 
6  C.  B.  (N.  S.)  519. 

84  Govier  v.  Hancock,  6  Term  R.  603.  But  see  Needham  v.  Bremner,  L. 
R.  1  C.  P.  583. 

85  Norton  v.  Fazan,  1  Bos.  &  P.  226;  Wilson  v.  Glossop,  19  Q.  B.  Div.  379; 
Ferren  v.  Moore,  59  N.  H.  106. 

80  xUuiy  V.  Wilcox,  110  Mass.  443. 

87  Hodgkiuson  v.  Fletcher,  4  Camp.  70;  Ross  v.  Ross.  69  111.  569;  Kimball 
V.  Keyes,  11  Wend.  (N.  Y.)  33;  Lockwood  v.  Thomas,  12  Johns.  (N.  Y.)  248; 
Walker  v.  Laighton,  31  N.  H.  Ill;  Dixon  v.  Ilurrell,  8  Car.  &  P.  717;  Fredd 
V.  Eves,  4  Har.  (Del.)  385 ;  Inhabitants  of  Alua  v.  Plummer,  4  Greenl.  ^le.) 
258.     But  see  McKee  v.  Cunningham,  2  Gal.  App.  684,  84  Pac.  260. 

ssBeale  v.  Arabin,  36  Law  T.  (X.  S.)  249;  Nurse  v.  Craig,  2  Bos.  &  P. 
(N.  R.)  148. 


134  CONTRACTS,  CONVEYANCES,  AND   QUASI-CONTRACT.  (Ch.  4 

When,  however,  he  furnishes  her  a  sufficient  allowance,  she  can- 
not bind  him;^*  and  the  fact  that  the  person  who  furnishes  her 
with  goods  has  no  knowledge  of  the  allowance  is  altogether  im- 
material, for  in  supplying  her  he  acts  at  his  peril.""  The  allowance 
must  be  sufficient  for  the  wife's  necessaries,  and  whether  it  is  so 
or  not  is  a  question  of  fact  for  the  jury,"^  except  where  she  agrees 
to  accept  a  stipulated  allowance,  and  not  to  apply  to  her  husband 
for  more.  In  that  case  the  question  of  the  sufficiency  of  the  al- 
lowance is  not  for  the  jury,  since  it  is  excluded  by  the  express  terms 
of  the  settlement."^ 

Where  the  husband  and  wife  are  living  apart,  the  husband  can- 
not, any  more  than  when  they  are  living  together,"^  deprive  his 
wife  of  the  right  to  pledge  his  credit,  where  he  neglects  to  make 
suitable   provision    for   her,   by   giving  notice   that   he    will   not    be 


8  9  Todd  V.  Stoakes,  1  Salk.  116;  Dixon  v.  Hurrell,  8  Car.  &  P.  717;  Mizen 
V.  Pick,  3  Mees.  &  W.  4S1 ;  Kemp  v.  Downtiam,  5  liar.  (Del.)  417;  Baker  v. 
Barney,  8  Johns.  (N.  Y.)  72,  5  Am.  Dec.  326;  Kimball  v.  Kej^es,  11  Wend. 
(N.  Y.)  33. 

0  0  Mizen  v.  Pick,  3  Mees.  &  W.  481;  Baker  v.  Barney,  8  Johns.  (N.  Y.)  72, 
5  Am.  Dec.  326 ;  Kemp  v.  Downham,  5  Har.  (Del.)  417. 

»i  Hodgkinson  v.  Fletcher,  4  Camp.  70;  Emmett  v.  Norton,  8  Car.  &  P. 
506 ;   Pearson  v.  Darrington,  32  Ala.  227. 

92  Eastland  v.  Burchell,  3  Q.  B.  Div.  432.  In  this  case  it  was  said:  "The 
authority  of  a  wife  to  pledge  the  credit  of  her  husband  is  a  delegated,  not  an 
Inherent,  authority.  If  she  binds  him,  she  binds  him  only  as  his  agent.  This 
is  a  well-established  doctrine.  If  she  leaves  him  without  cause  and  without 
consent,  she  carries  no  implied  authority  with  her  to  maintain  herself  at  his 
expense.  But  if  he  wrongfully  compels  her  to  leave  his  home,  he  is  bound 
to  maintain  her  elsewhere,  and  if  he  makes  no  adequate  provision  for  this 
purpose  she  becomes  an  agent  of  necessity  to  supply  her  wants  upon  his 
credit.  In  such  a  case,  Inasmuch  as  she  is  entitled  to  a  provision  suitable 
to  her  husband's  means  and  position,  the  sufficiency  of  any  allowance  which 
he  makes  under  these  circumstances  is  necessarily  a  question  for  the  jury. 
Where,  however,  the  parties  separate  by  mutual  consent,  they  may  make  their 
own  terms ;  and  so  long  as  they  continue  the  separation  these  terms  are 
binding  upon  both.  Where  the  terms  are,  as  in  this  case,  that  the  wife  shall 
receive  a  specified  income  for  her  maintenance  and  shall  not  apply  to  the 
husband  for  anything  more,  how  can  any  authority  to  claim  more  be  implied? 
It  is  excluded  by  the  express  terms  of  the  arrangement."  And  see  Johnson 
V.  Sumner,  27  Law  J.  Exch.  341;  Alley  v.  Winn,  134  Mass.  77,  45  Am.  Rep. 
297. 

83  Ante,  p.  129. 


§§    70-71)         CONTRACTS    BY    WIFE   AS   HUSBAND'S   AGENT.  135 

responsible  for  her  necessaries.®*  As  has  already  been  stated,  a 
husband  is  not  liable  for  necessaries  furnished  his  wife  where  cred- 
it was  given  to  her,  and  not  to  him/°  nor  where  she  has  a  separate 
and  sufficient  income.®' 

What  are  Necessaries  for  the  Wife. 

The  necessaries  for  which  a  wife  may  pledge  her  husband's  credit 
under  the  rules  which  have  just  been  explained  are  those  things 
which  are  essential  to  her  health  and  comfort,  according  to  the  rank 
and  fortune  of  her  husband.  Necessaries,  as  applied  to  a  wife,  are  not 
confined  to  those  articles  of  food  and  clothing  which  are  required  to 
sustain  life  and  preserve  decency,  but  include  such  articles  of  utility 
as  are  suitable  to  maintain  her  according  to  the  estate  and  degree 
of  her  husband.®^  Wearing  apparel,®^  medical  attendance,®®  reason- 
able dentistry,!  household  supplies,^'  furniture,^  a  gold  watch  and 
certain  jewelry,*  have  been  held  to  be  necessaries.     Legal  expenses 

04  Harris  v.  Morris,  4  Esp.  41;  Bolton  v.  Prentice,  2  Strange,  1214;  W. 
&  J.  Sloano  V.  Boyer  (Sup.)  95  N.  Y.  Supp.  531 ;  Pierpout  v.  Wilson,  49  Ck)nn. 
450;   Black  v.  Bryan,  18  Tex.  453;    Watkins  v.  De  Armond,  89  Ind.  553. 

9  5  Skinner  v.  Tirrell,  159  Mass.  474,  34  N.  E.  692,  21  L.  R.  A.  673,  38  Am. 
St.  Rep.  447;  Jewsbury  v.  Newbold,  26  Law  J.  Exch.  247;  Pearson  v.  Dar- 
rington,  32  Ala.  227;  Stammers  v.  Macomb,  2  Wend.  (N.  Y.)  454;  Moses  v. 
Fogartie,  2  Hill  (S.  G.)  335 ;   Carter  v.  Howard,  39  Vt.  106. 

88  Freestone  v.  Butcher,  9  Car.  &  P.  643 ;  Swett  v.  Peurice,  24  Miss.  416 ; 
Weisker  v.  Lowenthal,  31  Md.  413. 

8  7  Raynes  v.  Bennett,  114  Mass.  424.  See,  also,  Ross  v.  Johnson,  125  111. 
App.  65,  holding  that  the  test  is  not  wholly  whether  the  article  is  necessary 
and  useful. 

88  Hardenbrook  v.  Harrison,  11  Colo.  9,  17  Pac.  72;  Fitzmaurice  v.  Buck, 
77  Conn.  390,  59  Atl.  415 ;  Feiner  v.  Boyntou,  73  N.  J.  Law,  136,  62  Atl.  420 ; 
Ross  V.  Johnson,  125  111.  App.  65. 

99  Harris  v.  Lee,  1  P.  Wms.  482;  Mayhew  v.  Thayer,  8  Gray  (Mass.)  172; 
Cothran  v.  Lee,  24  Ala.  380;  Schneider  v.  Rosenbaum,  52  INIisc.  Rep.  143, 
101  N.  Y.  Supp.  529  (services  of  nurse).  Webber  v,  Spannhake,  2  Redf.  Sur. 
(N.  Y.)  258. 

1  Freeman  v.  Holmes,  62  Ga.  556;  Gilman  v.  Andrus,  28  Vt.  241,  67  Am. 
Dec.  713. 

2  Hall  V.  Weir,  1  Allen  (Mass.)  261;  Fischer  v.  Brady,  47  Misc.  Rep.  401, 
94  N.  Y.  Supp.  25 ;   Perkins  v.  Morgan,  36  Colo.  360,  85  Pac.  640. 

3  Hunt  V.  De  Blaquiere,  5  Bing.  550.  But  see  Caldwell  v.  Blanchard.  191 
Mass.  489,  77  N.  E.  1036,  as  to  purchase  by  wife  on  her  own  credit. 

4  Raynes  v.  Bennett,  114  Mass.  424.  A  set  of  "Stoddard's  Lectures,"  pur- 
chased by  a  wife,  was  not  necessaries  for  which  the  husband  was  liable  by 
virtue  of  the  marital  relation.  Shuman  v  Steinel,  129  Wis.  422,  109  N.  W. 
74,  7  L.  R.  A.  (N.  S.)  1048,  116  Am.  St.  Rep.  961. 


136  CONTRACTS,  CONVEYANCES,  AND   QUASI-CONTRACT.  (Cll.  4 

incident  to  a  suit  for  restitution  of  conjugal  rights,'  or  incident  to  a 
suit  for  divorce,  wlicre  there  is  reasonable  cause  for  instituting  suit,® 
have  also  been  held  to  be  necessaries.  By  the  weight  of  authority 
in  this  country,  however,  legal  expenses  in  suits  for  divorce  are  not 
necessaries.^  As  was  said  by  the  Connecticut  court:  "The  duty  of 
providing  necessaries  for  the  wife  is  strictly  marital,  and  is  imposed 
by  the  common  law  in  reference  only  to  a  state  of  coverture,  and  not 
of  divorce.  By  that  law  a  valid  contract  of  marriage  was  and  is 
indissoluble,  and  therefore  by  it  the  husband  could  never  have  been 
placed  under  obligation  to  provide  for  the  expenses  of  its  dissolu-' 
tion."  *  Legal  services  rendered  in  successfully  defending  a  married 
woman  against  a  criminal  prosecution  are  clearly  necessaries.* 

IMoney  is  not  to  be  regarded  as  necessaries.  "At  law  it  is  entirely 
clear  that  a  married  woman  has  no  right  to  borrow  money  on  her 
husband's  credit,  even  for  the  purchase  of  necessaries."  ^°  There 
are  a  number  of  cases  which  hold  that  where  a  person  has  lent 
money  to  a  wife  deserted  by  her  husband  for  the  purchase  of  neces- 
saries (even,  it  seems,  where  the  loan  is  to  the  wife,  and  not  on  the 
husband's  credit),  and  the  money  has  been  so  used,  he  can  recover  it 
from  the  husband  in  equity.^^     This  doctrine,  however,  is  not  clear 


6  Wilson  V.  Ford,  L.  R.  3  Exch.  63. 

«  Brown  v.  Ackroyd,  25  Law  J.  Q.  B.  193 ;  Ottaway  v.  Hamilton,  3  O.  P. 
Div.  393 ;  Porter  v.  Briggs,  3S  Iowa,  166,  18  Am.  Rep.  27.  In  tlie  latter  case 
it  was  tield  that  it  must  be  shown  tliat  the  services  were  necessary  for  the 
protection  of  the  wife's  person,  liberty,  or  reputation,  distinguishing  Johnson 
V.  Williams,  3  G.  Greene  (Iowa)  97,  54  Am.  Dec.  491,  where  legal  services 
in  divorce  proceedings  were  held  not  to  be  necessaries. 

7  Pearson  v.  Darrington,  32  Ala.  227 ;  Zent  v.  Sullivan,  47  Wash.  315,  91 
Pac.  1088,  13  L.  R.  A.  (N.  S.)  244;  Clarke  v.  Burke,  65  Wis.  359,  27  N.  W. 
22,  56  Am.  Rep.  631;  Morrison  v.  Holt,  42  N.  H.  478,  80  Am.  Dec.  120;  John- 
son V.  Williams,  3  G.  Greene  (Iowa)  97,  54  Am.  Dec.  491 ;  Wing  v.  Hurlburt, 
15  Vt.  607,  40  Am.  Dec.  695;  Dorsey  v.  Goodenow,  Wright  (Ohio)  120;  Wil- 
liams V.  Monroe,  18  B.  Mon.  (Ky.)  514;  Dow  v.  Eyster,  79  111.  254;  Shelton 
v.  Pendleton,  18  Goun.  423;  Collin  v.  Dunham,  8  Gush,  (Mass.)  404,  54  Am. 
Dec.  700. 

8  Shelton  v.  Pendleton,  18  Conn.  423. 

9  Conant  v.  Burnham,  133  Mass.  503,  43  Am.  Rep.  532.  And  see  dictum  in 
Porter  v.  Briggs,  38  Iowa,  160,  18  Am.  Rep.  27. 

10  Skinner  v.  Tirreil,  159  Mass.  474,  34  N.  E.  692,  21  L.  R.  A.  673,  38  Aiu. 
St.  Rep.  447. 

11  Harris  v.  Lee,  1  P.  Wms.  482;  Mar  low  v.  Pitfeild,  Id.  559;  Deare  v. 
Soutteu,  L.  R.  9  Eq.  151;    Jeuuer  v.  Morris,  3  De  Gex,  F.  &  J.  43;    Keuyou 


§  72)    husband's  liability  for  wife's  funeral  expenses.       137 

on  principle ;  and  it  has  lately  been  expressly  repudiated  in  Massachu- 
setts, on  the  ground  that  there  is  no  principle  upon  which  it  can  be 
sustained/'  As  far  as  precedent  is  concerned,  the  rule  is  amply  sus- 
tained, but  the  reasoning  of  the  Massachusetts  court  in  the  case 
referred  to  renders  it  very  doubtful. 


HUSBAND'S  LIABILITY  FOR  W^IFE'S  FUNERAL  EXPENSES. 

72.  It  is  the  husband's  duty  to  give  his  wife  burial,  and,  'where  he 
neglects  it,  he  will  be  liable  for  the  necessary  funeral  ex- 
penses to  any  one  w^ho  pays  them. 

Analogous  to  the  husband's  liability  for  necessaries  purchased  by 
his  wife  on  his  credit,  where  he  neglects  to  provide  for  her,  is  the 
liability  imposed  upon  him  by  law  to  pay  her  necessary  funeral 
expenses.  The  common  law  imposes  upon  the  husband  the  duty  of 
giving  his  wife  a  proper  burial;  and  if  he  neglects  to  perform 
this  duty,  and  some  other  person  performs  it,  and  pays  the  neces- 
sary funeral  expenses,  he  may  recover  the  money  paid  from  the 
husband,  by  an  action  quasi  ex  contractu,  as  for  money  paid  to 
the  use  of  the  husband ;  or  if  he  furnishes  the  coffin  and  other  things 
necessary  for  the  burial,  he  may  recover  their  value. ^^  In  the 
case  of  necessaries  purchased  by  the  wife  on  the  credit  of  her  hus- 
band, the  latter's  liability  is  based  on  the  theory  of  agency;  but 
it  is  agency  in  law  only,  or  quasi  agency,  for  there  is  no  agency  in 
fact.  In  the  case  of  funeral  expenses  of  the  wife,  the  husband's 
liability  is  not  necessarily  based  on  any  theory  of  agency.  In  both 
cases  the  real  ground  of  his  liability  is  the  same,  resting,  as  it  does 
on  the  duty  of  the  husband  which  he  has  neglected,  and  which  an- 


V.  Farris,  47  Conn.  510,  36  Am.  Rep.  86 ;  Walker  v.  Simpson,  7  Watts  &  S. 
(Pa.)  83,  42  Am.  Dec.  216;  Lenppie  v.  Osborn's  Ex'rs,  52  N.  J.  Eq.  637,  29 
Atl.  433. 

1.2  Skinner  v.  Tirrell,  159  Mass.  474,  34  N.  E.  692,  21  L.  R.  A.  673,  38  Am. 
St.  Rep.  447. 

13  Ambrose  v.  Kerrison,  20  Law  J.  C.  P.  135;  Bradstiaw  v.  Beard,  12  C.  B 
(N.  S.)  344;  Jenkins  v.  Tucker,  1  H.  Bl.  90;  Cunningliam  v.  Reardon,  98 
Mass.  538,  96  Am.  Dec.  670;  Sears  v.  Giddey,  41  Micli.  590,  2  N.  W.  917,  32 
Ajb.  Rep.  168. 


138  CONTRACTS,  CONVEYANCES,  AND   QUASI-CONTRACT.  (Ch.  4 

Other  has  performed  for  him.  In  both  cases  the  law  imposes  a  lia- 
bility quasi  ex  contractu. 

Since  the  husband  is  liable  for  his  wife's  funeral  expenses,  it 
would  seem  to  follow  necessarily  that  when  he  pays  them  he  pays 
his  own  debt,  and,  in  the  absence  of  any  agreement,  is  not  entitled 
to  reimbursement  out  of  the  wife's  separate  estate ;  and  it  has 
been  so  held.^*  Some  of  the  courts,  however,  have  taken  the  con- 
trary view.^'^ 

The  husband's  liability  is  not  affected  by  the  fact  that  the  wife 
left  property  by  a  will  to  another  person,  and  that  the  latter  as- 
sisted in  the  arrangements  and  direction  of  the  funeral.^'  And  the 
fact  that  the  wife  is  living  apart  from  her  husband,  through  her 
own  fault,  though  it  would  relieve  him,  as  has  been  shown,  from 
liability  for  her  necessaries,  will  not  relieve  him  from  liability  for 
her  funeral  expenses.^' 


HUSBAND'S     LIABILITY     FOR     "WIFE'S     ANTENUPTIAL     DEBTS. 

73.  The  hnsband  becomes  liable  on  marriage  for  bis  xrife'a  antenup- 
tial debts.  But  his  liability  lasts  only  during  the  coverture, 
after  xirhich  the  liability  of  the  Trife  revives.  This  liability 
has  been  very  generally  abolished  by  statute. 


1*  Smj'ley  v.  Reese,  53  Ala.  89,  25  Am.  Rep.  598;  Staples'  Appeal,  52  Conn. 
425;   In  re  Weringer's  Estate,  100  Cal.  345,  34  Pac.  825. 

1 B  Gregory  v.  Lockyer,  6  Madd.  90 ;  In  re  McMyn,  33  Cb.  Div.  575 ;  McCue 
V.  Garvey,  14  Hun  (N.  Y.)  562;  McClellan  v.  Filson,  44  Ohio  St.  184,  5  N,  E. 
SGI,  58  Am.  Rep.  814  (in  this  case,  however,  the  funeral  expenses  -were  paid 
out  of  the  wife's  estate  by  her  executor,  not  tht  husband).  In  this  connection 
see,  also,  Schneider  v.  Breier,  129  Wis.  440,  109  N.  W.  99,  6  L.  R.  A.  (N.  S.) 
917,  where  it  was  held  that  the  statute  (St.  1898,  §§  2341,  2342)  exempting  the 
separate  estate  of  a  married  woman  from  liability  for  the  husband's  debts 
does  not  exempt  her  estate  from  liability  for  her  funeral  expenses,  though  the 
materials  and  labor  were  ordered  by  the  husband  and  he  would  be  liable  at 
common  law.  St.  1898,  §  3852,  provides  that  funeral  expenses  shall  be  paid 
from  the  estate  of  the  decedent,  and  does  not  except  from  the  operation  there- 
of the  estate  of  a  married  woman  decedent. 

16  Sears  v.  Giddey,  41  Mich.  590,  2  N.  W.  917,  32  Am.  Rep.  1G8. 

IT  Seybold  v.  Morgan,  43  111.  App.  39. 


§  73)     husband's  liability  for  wife's  antenuptial  debts.        139 

The  husband  is  hable  during  coverture  for  the  debts  contracted 
by  his  wife  while  sole.^®  His  hability,  however,  continues  only 
during  coverture,  and  debts  not  put  in  judgment  during  that  time 
cannot  thereafter  be  enforced  against  him.^®  Although  he  may  have 
received  a  large  fortune  in  acquiring  his  wife's  personal  proper- 
ty by  the  marriage,  yet  he  retains  the  same,  on  her  death,  free  from 
any  liability  to  answer  for  her  antenuptial  debts. ^^  And  even  a 
court  of  equity  will  not  help  creditors  in  subjecting  Mrhat  the  hus- 
band has  received  to  their  claims.^  ^  The  husband  is  equally  liable 
for  his  wife's  debts  contracted  dum  sola  where  she  brings  him  no 
fortune.  ^^  Her  choses  in  action,  not  reduced  to  possession  by  the 
husband  during  coverture,  however,  may  be  reached  by  the  wife's 
creditors  after  her  death. ^^  On  the  theory  that  the  husband's  li- 
ability for  his  wife's  debts  rests  on  the  fact  that  marriage  vests  in 
the  husband  all  his  wife's  chattels,  and  the  right  to  reduce  her 
choses  in  action  to  possession,  whether  the  husband  is  an  infant 
or  not,  it  is  held  that  an  infant  husband  is  liable  for  his  wife's 
debts.^*  The  husband's  liability  is  limited  to  the  obligations  that 
were  legally  binding  on  his  wife;  and  hence,  if  his  wife  was  an 
infant,  he  is  only  liable  for  her  necessaries.^''  If  the  wife  survives 
her  husband,  she  again  becomes  liable  for  her  debts  contracted  dum 
sola,  although  she  may  have  brought  her  husband  a  fortune   from 


18  1  Bl.  Comm.  443;  2  Kent,  Comm.  143;  Thomond  v.  Suffolk,  1  P.  Wms. 
462,  4G9;  Heard  v,  Stamford,  3  P.  Wms.  409;  Barnes  v.  Underwood,  47  N. 
Y.  351;  Cole  v.  Shurtleff,  41  Vt.  311.  98  Am.  Dec.  587;  Platner  v.  Patcliin, 
19  Wis.  333;  Howes  v.  Bigelow,  13  Mass.  384;  Bryan  v.  Doolittle,  38  Ga. 
2.">5;  Hetrick  v.  Hetrick,  13  Ind.  44;  Morrow  v.  Whitesides'  Ex'r,  10  B.  Mon. 
(Ky.)  411;   Hawthorne  v.  Beckwith,  89  Va.  786,  17  S.  E.  241. 

19  See  the  cases  cited  above. 

20  Heard  v.  Stamford,  3  P.  Wms.  409;  Thomond  v.  Suffolk,  1  P.  Wms.  4G9; 
Barnes  v.  Underwood,  47  N.  Y.  351;   Cureton  v.  Moore,  55  N.  O.  204. 

21  Heard  v.  Stamford,  3  P.  Wms.  409;  Morrow  v.  WTaitesides'  Ex'r,  10  B. 
Mon.  (Ky.)  411 ;  Cureton  v.  Moore,  55  N.  C.  204. 

22  Thomond  v.  Suffolk,  1  P.  Wms.  4G9. 

23  Heard  v.  Stamford,  3  P.  Wms.  409;   ante,  p.  95. 

24  Reeves,  Dom.  Rel.  234;  Roach  v.  Quick,  9  Wend.  (N.  T.)  238;  Butler  v. 
Breck,  7  Mete.  (Mass.)  1G4,  39  Am.  Dec.  768;  Cole  v.  Seeley,  25  Vt.  220,  60 
Am.  Dec.  258. 

26  Anderson  v.  Smith,  33  Md.  465 ;    Bonuey  v.  Reardiu,  6  Bush  (Ky.)  34. 


140  CONTRACTS,  CONVEYANCES,  AND   QUASI-CONTRACT.  (Ch.  4 

which  he  has  neglected  to  pay  them.^"  In  an  action  to  enforce 
the  husband's  hability,  the  husband  and  wife  must  be  sued  joint- 
ly.^^  In  most  states  by  statute  the  common  law  liability  of  the 
husband  for  his  wife's  antenuptial  debts  has  been  abolished.*' 

26  Woodman  v.  Chapman,  1  Camp.  189;   Parker  v.  Steed,  1  Lea  (Tenn.)  206. 

2  7  Mitcbinsou  v.  Hewson,  7  Term  R.  348;  Gage  v.  Reed,  15  Johns.  (N.  Y.) 
403;  Cole  v.  Shurtleff,  41  Vt  311,  98  Am.  Dec.  587;  Platner  v.  Patchin,  19 
Wis.  333. 

2  8  See  the  statutes  of  the  various  states;  Smith  v.  Martin,  124  Mich.  34, 
82  N.  W.  662;  Taylor  v.  Rountree.  15  Lea  (Tenn.)  725;  Baker  v.  Lukens,  35 
Pa.  146;  Zachary  v.  Cadenhead,  40  Ala.  236.  See,  also,  Clark  v.  Miller,  88 
Ky.  108,  10  S.  W.  277,  holding  that  under  the  Kentucky  statute  the  husband 
is  not  liable  except  to  the  amount  he  may  have  received  from  the  wife.  But 
see  Kies  v.  Young,  64  Ark.  381,  42  S.  W.  669,  62  Am.  St.  Rep.  198 ;  Ferguson 
v.  Williams,  65  Ark.  631,  44  S.  W.  1126 ;  McMurtry  v.  Webster,  48  111.  123 ; 
Connor  v.  Berry,  46  III.  370,  95  Am.  Dec.  417;  Alexander  v.  Morgan,  31  Ohio 
St.  546. 


§  74)      wife's  equitable  and  statutory  separate  estate.         141 

CHAPTER  V. 

WIFE'S    EQUITABLE   AND    STATUTORY    SEPARATE    ESTATE. 

74.  Equitable  Separate  Estate. 

75.  Jus  Disponendl. 

76-78.  Power  to  Charge  by  CJontract 

79.  Statutory  Separate  Estate. 

80.  Jus  Disponendl. 

81-83.  Power  to  Charge  by  Contract. 

The  extent  to  which  property  rights  are  affected  by  coverture 
at  common  law,  and  the  power  of  a  married  woman,  at  common  law, 
to  dispose  of  her  property,  and  to  enter  into  contracts,  have  been 
explained.  Attention  was  also  called  to  the  fact  that  the  com- 
mon-law doctrine  does  not  apply  to  the  full  extent  in  equity,  nor 
under  modern  statutes.  In  this  chapter  the  doctrine  of  courts  of 
equity  in  relation  to  property  settled  to  the  separate  use  of  the 
wife,  called  her  "equitable  separate  estate,"  including  her  power  to 
dispose  of  the  same,  and  contract  in  relation  to  it,  will  be  explain- 
ed. The  law  governing  the  separate  statutory  estate  of  a  married 
woman,  and  her  powers  in  relation  thereto,  will  then  be  considered. 

EQUITABIiE  SEPARATE  ESTATE. 

74.  In  eqnity,  a  married  xtroman  may  hold  as  a  feme  sole,  and  free 
from  the  control  of  her  husband,  property,  real  or  personal, 
settled  to  her  sole  and  separate  use.  To  create  an  equitable 
separate  estate  in  the  tvlfe,  there  must  be  an  intention  that 
the  vpife  shall  take,  and  that  the  husband  shall  not. 

To  mitigate  the  hardships  arising  from  the  rules  of  the  common 
law  giving  to  the  husband  rights  in  his  wife's  property,  equity  has 
recognized,  or  rather  created,  a  doctrine  by  which  a  married  woman 
may  acquire  and  hold  a  separate  estate,  both  real  and  personal, 
independently  of  her  husband,  and  free  from  his  control.  For  this 
purpose  equity  treats  married  women,  in  relation  to  their  separate 
property,    as    if    sole.^      This    doctrine    is    a   creature    of    equity    on- 

1  Hulme  V.  Tenant,  1  Brown,  Ch.  16,  1  White  &  T.  Lead  Cas.  Eq.  679, 
and  authorities  there  cited;  Jaques  v.  Methodist  Episcopal  Church,  17  Johns. 
<N.  Y.)  549,  8  Am.  Dec.  447.    And  see  authorities  hereinafter  referred  to. 


142        wife's  equitable  and  statutory  separate  estate.    (Ch.  5 

ly,  and  was  unknown  to  the  common  law.  The  doctrine  applies 
onl>  to  property  held  to  the  wife's  separate  use  by  the  terms  of 
some  agreement  or  conveyance,  as  under  antenuptial  or  postnuptial 
agreements  with  her  husband,  gifts  from  her  husband  or  stran- 
gers, or  conveyances,  devises,  or  bequests.^  Trust,  estates,  not  lim- 
ited to  her  separate  use,  are  not  equitable  separate  estates  falling 
within  this  rule.' 

It  is  well  settled  that  to  create  an  equitable  separate  estate  the 
intention  to  create  it  must  clearly  appear.  As  has  often  been  said 
in  the  cases,  the  words  used  in  the  grant  or  other  instrument  must 
clearly  show  that  it  is  intended  that  the  wife  shall  take,  and  the 
husband  shall  not.  If  this  definitely  appears,  the  form  of  the  words 
is  immaterial.*  No  trustee  need  be  named  for  the  wife.  If  no 
one  is  named  as  trustee,  equity  will  nevertheless  treat  the  property 
as  her  separate  estate,  and  hold  the  husband  as  trustee."* 

The  property  settled  to  a  wife's  separate  use  may  be  real  or  per- 
sonal   or    any    interest    therein,   as    well    as    the    rents    and    income 


23  Pom.  Eq.  Jur.  §  1101;  Holliday  v.  Hively,  198  Pa.  335,  47  Atl.  9S8; 
Wallace  v.  Wallace,  82  111.  530 ;  Musson  v.  Trigg,  51  Miss.  172;  Harris  v.  Mc- 
Elroy,  45  Pa.  216;  Stark  v.  Kircbgraber,  186  Mo.  633,  85  S.  W.  868,  105  Am. 
St.  Rep.  629. 

3  3  Pom.  Eq.  Jur.  §  1098;   Taylor  v.  Meads,  4  De  Gex,  J.  &  S.  597. 

4  Buck  V.  Wroten,  24  Grat.  (Va.)  250;  Rixey's  Adm'r  v.  Deitrick,  85  Va. 
42,  6  S.  E.  617.  The  word  "separate"  has  acquired  a  technical  meaning, 
and,  where  it  is  used  in  this  connection,  it  is  sufficient  to  create  a  separate 
estate.  But  the  word  "sole"  has  not  necessarily  this  effect.  Massy  v.  Ilow- 
en,  L.  R.  4  H.  L.  288.  The  courts  have  held  sufficient  the  words  "for  her 
sole  and  separate  use,"  Goodrum  v.  Goodrum,  43  N.  C.  313;  Parker  v. 
Brooke,  9  Ves.  583,  587;  "as  her  separate  estate,"  Fox  v.  Hawkes,  13  Ch. 
Div.  822;  Swain  v.  Duane,  48  Cal.  358;  "for  her  own  use,  independent  or 
her  husband,"  Wagstaff  v.  Smith,  9  Ves.  520;  "for  her  own  use  and  bene- 
fit, independent  of  any  other  person,"  Margetts  v.  Barringer,  7  Sim.  482; 
"that  she  shall  receive  and  enjoy  the  issues  and  profits,"  Tj^rrell  v.  Hope, 
2  Atk.  501.  The  courts  have  passed  on  the  sufficiency  of  innumerable  phras- 
es. For  a  collection  of  the  cases,  see  the  notes  to  3  Pom.  Eq.  Jur,  §  1102, 
and  Stew.  Husb.  &  W.  §  200.  The  principle  is  well  settled  that,  as  held  in 
Re  Peacock's  Trusts,  10  Ch.  Div.  490,  an  intention  must  appear  that  the 
wife  shall  take,  and  that  the  husband  shall  not;  but  there  are  many  in- 
consistencies  in  the  cases   in  applying  this   principle  to  particular  words. 

5  Story,  Eq.  Jur.  §  1380;  3  Pom.  Eq.  Jur.  §  1100;  Bennet  v.  Davis,  2  P. 
Wms.  310;  Newlands  v.  Paynter,  4  Mylne  &  C.  408;  Jones  v.  Clifton,  101 
U.  S.  225,  25  Jj.  Ed.  008;  Porter  v.  Bank,  19  Vt.  410;  Firemen's  Ins.  Co. 
of  Albany  v.  Bay,  4  Barb.  (N.  Y.)  407;   Varner's  Appeal,  80  Pa.  140. 


§    75)         POWER  TO  DISPOSE  OF  EQUITABLE  SEPARATE  ESTATE.  143 

therefrom,'  and  investments  made  from  the  savings  of  such  rents 
or  income^  or  from  the  proceeds  of  sales.*  Personal  property  in 
possession,  settled  to  the  separate  use  of  the  wife,  and  not  dis- 
posed of  by  her,  passes  to  the  husband  on  her  death  jure  mariti, 
and  not  to  her  personal  representatives,  for  a  wife's  separate  es- 
tate lasts  only  during  coverture.* 


POVTER   TO   DISPOSE   OF   EQUITABLE    SEPARATE  ESTATE. 

75.  In  most  jurisdictions  a  married  iv^oman  has  the  po'tver  to  dis- 
pose of  her  eqidtable  separate  estate,  real  or  personal,  though 
no  power  to  do  so  is  expressly  conferred  by  the  instrument 
creating  it,  provided  the  power  is  not  expressly  excluded.  In 
some  jurisdictions  it  is  held  that  the  power  must  be  express- 
ly conferred. 

Whether  or  not  a  married  woman  has  the  power  to  dispose  of 
her  equitable  separate  estate  is  a  question  upon  which  the  authori- 
ties are  in  direct  conflict.  It  has  been  established  by  the  court  of 
chancery  in  England,  and  the  doctrine  is  recognized  in  some  of  our 
states,  that,  even  though  no  power  to  dispose  of  her  separate  equi- 
table estate  is  expressly  conferred  by  the  instrument  creating  it,  she 
has  such  power,  on  the  theory  that  the  power  is  a  necessary  incident 
of  the  estate.  ^**     According  to  this  doctrine,  she  may  dispose  of  her 

6  3  Pom.  Eq.  Jur.  §  1103;  Cheever  v.  Wilson,  9  Wall.  108,  19  L.  Ed.  G04; 
Vizonneau  v.  Pegram,  2  Leigh  (Va.)   183. 

7  Barrack  v.  McCulloch,  3  Kay  &  J.  110;  Gore  v.  Knight,  2  Vera.  535. 
But  see,  contra,  Ordway  v.  Bright,  7  Heisk.  (Tenn.)  6S1. 

8  Justis  V.  English,  30  Grat.  (Va.)  505;  City  Nat.  Bank  of  Providence,  R. 
I.,  V.  Hamilton,  34  N.  J.  Eq.  158. 

9  2  Macq.  Husb.  &  W.  288;  Molony  v.  Kennedy,  10  Sim.  254;  Brown's 
Adm'rs  v.  Brown's  Adm'rs,  6  Humph.  (Tenn.)  127. 

10  Fettiplace  v.  Gorges,  1  Ves.  Jr.  4G;  Rich  v.  Coekell,  9  Ves.  3G9;  Lech- 
mere  V.  Brotheridge,  32  Beav.  353;  Farington  v.  Parker,  L.  R.  4  Eq.  110; 
Radford  v.  Carwile,  13  W.  Va.  572;  Frary  v.  Booth,  37  Vt.  78;  Imlay  v. 
Huntington,  20  Conn.  14G;  Jaques  v.  Methodist  Episcopal  Church,  17  Johns. 
(N.  Y.)  548,  8  Am.  Dec.  447;  Leaj'craft  v.  Uedden,  4  N.  J.  Eq.  551;  Buchan- 
an V.  Turner,  26  Md.  1;  Penn  v.  Whitehead,  17  Grat.  (Va.)  503,  94  Am. 
Dec.  478;  Bank  of  Greensboro  v.  Chambers,  30  Grat.  (Va.)  202,  32  Am.  Rep. 
GGl;  Bain  v.  Buff's  Adm'r,  7G  Va.  371;  Collins  v.  Wassell,  34  Ark.  17;  Mil- 
ler v.  A'oss,  62*Ala.  122;  Dallas  v.  Heard,  32  Ga.  604;  Smith  v.  Thompson, 
2  MacArthur  (D.  C.)  291;  Miller  v.  Newton,  23  Cal.  554;  Pond  v.  Carpen- 
ter, 12  Minn.  430  (Gil.  315);    Burch  v.  Breckinridge,  16  B.  Mon.  (Ky.)   482, 


144         wife's  equitable  and  statutory  separate  estate.    (Ch.  5 

equitable  separate  estate,  whether  it  is  real  or  personal,  either  by  will, 
or  by  gifts,  transfers,  or  conveyances,  provided  the  instrument  creat- 
ing the  estate  does  not  expressly  or  by  clear  implication  restrain  her 
from  doing  so.  And  she  may  do  so  without  the  consent  or  concur- 
rence of  her  husband  or  her  trustee,  in  the  absence  of  express  restraint 
in  the  instrument.^ ^  In  some  states  the  courts  have  refused  to  recog- 
nize this  doctrine,  and  have  held  that  a  wife  has  no  power  to  dispose 
of  her  equitable  separate  estate,  unless  the  power  has  been  expressly 
conferred. ^^ 

Where  the  wife  has  the  unrestricted  power  to  dispose  of  her  equi- 
table separate  estate,  she  may  dispose  of  it  in  any  way  she  may  see 
fit,  and  she  may  therefore  give  or  convey  it  to  her  husband  as  well  as 
to  any  other  person ;  but  the  disposition  in  such  a  case  "must  be  free, 
— neither  the  result  of  flattery,  nor  of  force,  nor  harsh  and  cruel  treat- 
ment." ^» 

FOVrEB  TO  CHARGE  EQUITABIiE  SEPARATE  ESTATE  BT  CON- 
TRACT. 

7G.  In  England,  and  in  most  of  our  states,  a  married  xroman  lias  the 
power,  as  an  incident  to>  her  separate  estate,  to  charge  it  by 
contract,  unless  the  pox^er  is)  excluded  in  the  creation  of  the 
estate.      In  some  states  the  povrer  must  be  expressly  conferred. 

77.  In  England,  and  in  some  of  the  states,  this  poiieer  is  not  limited 

to  contracts  for  the  benefit  of  the  estate,  or  even  for  the  bene- 
fit of  the  Teife  generally.  In  some  states  it  is  so  limited.  In 
others  it  is  limited  to  contracts  for  the  benefit  of  the  estate 
itself. 

78.  In  England,  and  in  all  of  the  states,  the  contract  must  be  made 

Hipou  the  faith  of  the  estate.     In  England,  and  in  some  states, 

63  Am.  Dec.  553;  Metropolitan  Bank  v.  Taylor,  53  Mo.  444.  The  jus  dls- 
poneudi  extends  to  her  lands  in  fee  in  England.  Taylor  v.  Meads,  4  De 
Gex,  J.  &  S.  597,  604.  But  in  this  country  it  has  been  held  otherwise.  Rad- 
ford V.  Carwile,  13  W.  Va.  572;  Bank  of  Greensboro  v.  Chambers,  30  Grat. 
(Va.)  202,  32  Am.  Rep.  661;   Armstrong  v.  Ross,  20  N.  J.  Eq.  109. 

11  Jaques  v.  Methodist  Episcopal  Church,  17  Johns.  (N.  Y.)  548,  8  Am.  Dec. 
447,  and  other  cases  cited  above. 

12  Ewing  V.  Smith,  3  Desaus.  (S.  C.)  417,  5  Am.  Dec.  557;  Hardy  v.  Hol- 
ly, 84  N.  C.  661;  HoUiday  v.  Hively,  198  Pa.  335,  47  Atl.  988;  Maurer's  Ap- 
peal, 86  Pa.  380;  Metcalf  v.  Cook,  2  R.  I.  355  (criticised  in  Ives  v.  Harris, 
7  R.  I.  413);  Doty  v.  Mitchell,  9  Smedes  &  M.  (Miss.)  435;  Bressler  v.  Kent, 
61  111.  420,  14  Am.  Rep.  07;   Hix  v.  Gosling,  1  Lea  (Tenn.)  560. 

13  Jaques  v.  Methodist  Episcopal  Church,  17  Johns.  (N.  Y.)  549,  8  Am. 
Dec.  447. 


§§  76-78)      POWER  TO  CHARGE  EQUITABLE  ESTATE  BY  CONTRACT.       145 

whether  it  was  so  made  is  to  be  ascertained  from  all  the  sur- 
rounding circumstances.  In  other  states  it  must  expressly 
purport  to  charge  the  estate. 

The  Court  of  Chancery  in  England  having  established  the  doctrine 
of  the  wife's  separate  property,  it  was  held  to  follow  that  a  married 
woman  could  not  claim  the  protection  of  equity  in  the  enjoyment  and 
disposition  of  her  property  without  being  subject  to  the  burdens  in- 
cident to  ownership.  While  her  contracts  were  void  at  law,  equity 
introduced  the  innovation  that,  if  she  entered  into  an  obligation  which, 
if  she  were  sole,  would  constitute  a  personal  obligation  against  her 
and  purported  to  contract  on  the  faith  and  credit  of  her  separate  es- 
tate, though  she  did  not  render  herself  personally  liable,  yet  her  sepa- 
rate estate  was  thereby  charged ;  and  it  was  considered  to  be  imma- 
terial whether  the  contract  was  for  the  benefit  of  the  separate  estate 
or  not,  or  even  whether  it  was  for  her  benefit  or  not.^*  "The  sepa- 
rate property  of  a  married  woman,"  it  was  said,  "being  a  creature  of 
equity,  it  follows  that,  if  she  has  a  power  to  deal  with  it,  she  has  the 
other  power  incident  to  property  in  general,  namely,  the  power  of  con- 
tracting debts  to  be  paid  out  of  it;  and,  inasmuch  as  her  creditors 
have  not  the  means  at  law  of  compelling  payment  of  those  debts,  a 
court  of  equity  takes  upon  itself  to  give  efifect  to  them,  not  as  person- 
al liabilities,  but  by  laying  hold  of  the  separate  property  as  the  only 
means  by  which  they  can  be  satisfied."  ^'^ 

Some  of  the  American  courts  have  recognized  and  followed  the 
doctrine  of  the  English  court,  and  hold  that  the  power  to  charge  the 
estate  with  debts  is  incident  to  the  ownership  of  the  estate ;  that  it 
need  not  be  expressly  conferred  by  the  instrument  creating  the  es- 
tate ;  and,  further  than  this,  that  the  debt  need  not  be  for  the  benefit 
of  the  estate,  or  even  for  the  benefit  of  the  wife.  Thus  it  has  been 
held  that  separate  property  of  a  married  woman,  conferred  upon  her 
by  marriage  settlement  (and  the  rule  would  apply  to  separate  prop- 
erty conferred  in  any  other  way),  which  provides  that  she  shall  have 
the  complete  control  of  it  as  though  the  marriage  had  never  taken 
place,  and  contains  no  restraint  upon  alienation,  causes  her  to  be  re- 
garded in  a  court  of  equity,  with  regard  to  such  property,  as  a  feme 

1*  Matthewman's  Case,  L.  R.  3  Eq.  781,  787;  Johnson  v.  Gallagher,  3  D'.* 
Gex,  F.  &  J.  494,  509;  Hulme  v.  Tenant,  1  Brown,  Ch.  16,  1  White  &  T. 
Lead.  Cas.  Eq.  679,  and  authorities  there  collated. 

15  Owens  V.  Dickenson,  Craig  &  P.  48. 
TIFF.P.&  D.Rel.(2d  Ed.)— 10 


146        wife's  equitable  and  statutory  separate  estate.    (Ch.  5 

sole,  and  she  may,  by  her  agreement,  freely  entered  into,  charge  it  even 
for  the  payment  of  her  husband's  debts. ^' 

In  some  states  it  is  held  that  the  contract  must  be  for  the  benefit 
of  the  estate.  In  these  states  a  married  woman  has  no  power  to  bind 
her  separate  estate  at  all,  even  by  expressly  charging  it,  unless  the 
contract  is  for  the  benefit  of  the  estate  itself.^''  In  other  states  it 
seems  to  be  the  rule  that  the  contract  must  be  either  for  the  benefit  of 
the  separate  estate  or  for  the  benefit  of  the  wife  generally.*® 

In  some  states,  as  has  been  seen,  it  is  held  that  a  married  woman 
has  no  power  to  dispose  of  her  separate  estate,  unless  that  power  is 
expressly  conferred  by  the  instrument  creating  the  estate.  So,  on  the 
same  reasoning,  it  is  there  held  that  she  cannot  charge  her  separate 
estate  by  contracts  in  relation  thereto  unless  the  power  has  been  ex- 
pressly conferred  upon  her  in  the  creation  of  the  estate.*®  In  no  case 
can  a  married  woman  charge  her  separate  estate  by  contract  if  she 
is  restrained  from  doing  so  by  the  instrument  creating  it. 

It  must  be  borne  in  mind  that  under  this  doctrine  a  married  woman 
has  no  more  power  in  equity  than  she  has  at  law  to  bind  herself  per- 
sonally by  her  contracts,  even  where  they  are  made  in  relation  to,  and 
for  the  benefit  of,  her  equitable  separate  estate.  Equity  merely  lays 
hold  of  the  estate  to  satisfy  the  debt,  and  does  not  undertake  to  hold 
her  personally  liable.    She  binds  the  estate  only,  and  not  herself. 

It  is  not  every  contract  of  a  married  woman  that  is  binding  up- 
on her  equitable  separate  estate,  even  if  it  is  for  the  benefit  of  the  es- 
tate. In  all  jurisdictions  it  is  held  that  the  contract  must  have  been 
made  on  the  faith  of  that  estate.^"     If  a  man,  for  instance,  should 


16  Bradford  v.  Greenway,  17  Ala.  797,  52  Am.  Dec.  203,  And  see  Bain  v. 
Buff's  Adra'r,  76  Va.  371. 

1  r  AVillard  v.  Eastham,  15  Gray  (Mass.)  328,  77  Am.  Dec.  366;  Hebm-n  v. 
Warner,  112  Mass.  271,  17  Am.  Rep.  86;  Musson  v.  Trigg,  51  Miss.  172; 
Owens  V.  Johnson,  8  Baxt.  (Tenn.)  265. 

18  Yale  V.  Dederer,  18  N.  Y.  265,  72  Am.  Dec.  503;  Kantrowitz  v.  Pratli- 
er,  31  Ind.  92,  99  Am.  Dec.  587;  Wilson  v.  Jones,  46  Md.  349;  Homeopatliic 
Mut.  IJfe  Ins.  Co.  v.  Marsliall,  32  N.  J.  Eq.  103;  Eliott  v.  Gower,  12  K.  I. 
79,  34  Am.  Rep.  600;  Dale  v.  Robinson,  51  Vt.  20,  31  Am.  Rep.  669;  Lillard 
V.  Turner,  16  B.  Mon.  (Ky.)  374. 

19  Willard  v.  Eastliam,  15  Gray  (Mass.)  328,  77  Am.  Dec.  366;  Heburn  v. 
Warner,  112  Mass.  271,  17  Am.  Rep.  86;  Adams  v.  Mackey,  6  Rich.  Eq. 
(S.  C.)  75;  Musson  v.  Trigg,  51  Miss.  172;  Owens  v.  Johnson,  8  Baxt.  (Tenn.) 
265. 

20  Johnson  v.  Gallagher,  3  De  Gex,  F.  &  J.  494 ;  Jaques  v.  New  York  M. 


I 


§§  76-78)      POWER  TO  CHARGE  EQUITABLE  ESTATE  BY  CONTRACT.      147 

sell  a  married  woman  goods,  not  knowing  she  had  a  separate  estate, 
but  trusting  her  personally,  he  could  not  afterwards  hold  the  estate 
liable. 

As  to  the  sufficiency  of  the  circumstances  to  show  that  the  contract 
sought  to  be  enforced  was  made  on  the  faith  of  the  separate  estate, 
so  as  to  constitute  a  charge  upon  it,  the  courts  are  not  agreed,  and 
the  rules  are  different  in  the  different  jurisdictions.  According  to  the 
English  doctrine  the  contract  need  not  show  by  express  terms  that 
it  was  made  on  the  credit  of  the  estate;  but  it  is  sufficient  if  it  ap- 
pears from  all  the  surrounding  circumstances  that  it  was  made  with 
intent  to  charge  the  estate.^^  And  this  rule  has  been  substantially 
adopted  by  the  courts  of  some  of  our  states. ^^  It  was  said  in  an  Eng- 
lish case:  "In  order  to  bind  her  separate  estate  by  a  general  engage- 
ment, it  should  appear  that  the  engagement  was  made  with  reference 
to,  and  upon  the  faith  and  credit  of,  that  estate ;  and  the  question 
whether  it  was  so  or  not  is  to  be  judged  of  by  the  court  upon  all  the 
circumstances  of  the  case."  ^^  In  some  of  the  states  it  is  held  that  the 
contract  must  expressly  purport  to  charge  the  separate  estate.^*  And 
in  still  other  states  it  is  held  that  the  contract  must  expressly  pur- 
port to  charge  the  estate  if  it  is  not  for  the  benefit  of  the  estate  it- 
self, but  for  the  benefit  of  the  wife  generally.** 


E.  Churcli,  17  Johns.  (N.  Y.)  548,  8  Am.  Dec.  447;  Johnson  v.  Cummins, 
16  N.  J.  Eq.  97,  84  Am.  Dec.  142. 

21  Lewin,  Tnists,  767;  Perry,  Trusts,  §  659;  Johnson  v.  Gallagher,  3  De 
Gex,  F.  &  J.  494;  Matthewman's  Case,  L.  R,  3  Eq.  781;  Shattock  v.  Shat- 
tock,  L.  R.  2  Eq.  182. 

2  2  Sprague  v.  Tyson,  44  Ala.  338;  De  Baun  v.  Van  Wagoner,  56  Mo.  347; 
Avery  v.  Vansickle,  35  Ohio  St.  270;  Harshberger's  Adm'r  v.  Alger,  31  Grat, 
(Va.)  52;    Radford  v.  Carwile,  13  W.  Va.  572. 

2  3  Johnson  v.  Gallagher,  3  De  Gex,  F.  &  J.  494. 

2  4  Willard  v.  Eastham,  15  Gray  (Mass.)  328,  77  Am.  Dec.  366;  Heburn 
V.  Warner,  112  Mass.  271,  17  Am.  Rep.  86;  Wilson  v.  Jones,  46  Md.  349; 
Musson  V.  Trigg,  51  Miss.  172;  Owens  v.  Johnson,  8  Baxt.  (Tenn.)  265. 

25  Yale  V.  Dederer,  18  N.  Y.  265,  72  Am.  Dec.  503;  Wilson  v.  Jones,  46 
Md.  349;  Homeopathic  Mut.  Life  Ins.  Co.  v.  Marshall,  32  N.  J.  Eq.  103; 
Eliott  V.  Gower,  12  R.  I.  79,  34  Am.  Rep.  600;  Dale  v.  Robinson,  51  Vt  20, 
31  Am.  Rep.  669;   Lillard  v.  Turner,  16  B.  Mon.  (Ky.)  374» 


148        wife's  equitable  and  statutory  separate  estate.    (Ch.  5 


STATUTORY  SEPARATE  ESTATE. 

79.  Tlie  common  laiv,  in  so  far  as  it  affects  tlie  property  of  the  Trife, 
lias  been  greatly  modified  by  modern  statutes.  The  result  of 
these  statutes  may  be  stated  thus: 

(a)  Perhaps  in  all  the  states  the  real  estate  owned  by  a  xiroman  at 

the  time  of  her  marriage  remains  her  separate  property  after 
marriage. 

(b)  In  most  states  real  estate  acquired  by  her  after  marriage,  by 

devise,    descent,    or   purchase,    becomes   and    remains    her    sepa- 
rate property. 

(c)  In  some  states  real  estate  acquired  in  any  ivay  becomes  and  re- 

mains her  separate  property. 

(d)  In  most  states  the  personal  property  oxrned  by  a  ivoman  at  the 

time    of    her    marriage    remains    her    separate    property    after 
marriage. 

(e)  In    most    states    personal   property    acquired    by    her    after    mar- 

riage, by  bequest,  descent,  or  purchase,  becomes  and  remains 
her  separate  property. 

It  has  been  seen  in  another  chapter  that  at  common  law  the  hus- 
band acquires  certain  rights  in  his  wife's  real  estate,  and  acquires  the 
absolute  right  to  all  her  personalty  in  possession,  and  the  right  to  re- 
duce her  choses  in  action  to  possession.  As  already  stated,  the  leg- 
islatures have  in  modern  times  enacted  laws  changing  the  common 
law  to  a  greater  or  less  extent  in  the  different  states.  In  no  state  is 
the  common  law  now  in  force  to  its  full  extent.  The  statutes  vary 
so  much  in  the  different  states  that  we  can  only  refer  to  them  in  a 
general  way. 

Statutes  have  been  passed  in  all  the  states  of  this  country,  perhaps, 
declaring  that  the  real  and  personal  property  owned  by  a  woman  re- 
mains her  separate  property  on  her  marriage,  and  that  all  property, 
real  or  personal,  acquired  by  her  after  marriage,  by  devise  or  descent, 
purchase  or  gift,  becomes  her  sole  and  separate  property.^® 

In  some  states  there  are  constitutional  provisions  intended  to  se- 
cure the  property  rights  of  married  women,*^  and  statutes  passed  in 


26  See  the  statutes  of  the  various  states.  In  some  instances  it  is  provid- 
ed that  the  statute  shall  not  apply  to  property  acquired  by  gift  from  the 
husband.  See  Comp.  St.  Neb.  1905,  c.  53,  §  4290-1.  For  English  statute,  see 
Married  Women's  Property  Act  (St.  45  &  46  Vict.  c.  75  [1SS2]). 

2  7  Const.  Ark.  1S74,  art  9,  §§  7,  8;  Const.  S.  C  1895,  art.  17,  §  9;  Const 
W.  Va.  art  6,  §  49. 


§    79)  ■      STATUTORY    SEPARATE    ESTATE.  149 

accordance  therewith  are  not  objectionable,  in  that  they  give  greater 
protection  to  married  women  than  the  Constitution  requires. ^^ 

The  statutes  are,  as  a  rule,  so  clearly  worded  that  there  is  no  diffi- 
culty in  determining  their  effect  in  so  far  as  they  give  the  wife  cer- 
tain property  owned  or  acquired  by  her  as  her  separate  estate.  The 
chief  difficulty  has  been  in  determining  the  powers  and  liabilities  of 
the  wife  in  respect  of  such  property. 

Construction — Effect  in  General. 

The  general  rule  for  the  construction  of  these  statutes  is  that  they 
are  to  be  so  construed  as  to  give  full  effect  to  their  terms; '°  but,  since 
they  are  in  derogation  of  the  common  law,  they  are  not  to  be  extended 
further.  They  do  not  impliedly  abrogate  the  common  law  beyond 
their  terms.'^  Thus,  where  a  statute  provided  that  the  wife  should 
hold  her  separate  estate  to  her  sole  and  separate  use,  and  that  it  should 
not  be  subject  to  the  disposal  of  her  husband,  nor  be  liable  for  his 
debts,  it  was  held  that  the  husband  was  nevertheless  entitled  to  an 
estate  by  the  curtesy,  as  the  statute  could  have  full  effect  without  im- 
pairing his  right  thereto.^^  Nor  will  such  an  enactment  deprive  the 
husband  of  the  right  to  administer  on  his  wife's  estate.'^ 

The  general  effect  of  the  statutes  is  to  abrogate  the  husband's  title 
to  the  wife's  property,  secured  to  him  by  the  common  law,  and  to 
vest  in  her  both  the  legal  and  the  equitable  title,^*  and  to  secure  to 
her  the  same  control  and  power  of  management  she  would  have  if 
sole,  except  in  so  far  as  her  right  to  charge  the  property  for  debts  is 
restricted."^ 

Statutory  and  Equitable  Separate  Estate  Distinguished. 

Statutes  creating  a  statutory  separate  estate  do  not  necessarily 
destroy  the  wife's  right  to  a  separate  estate  in  equity;  but  an  equita- 
ble separate  estate  may  be  created  and  may  exist  at  the  same  time  as 


2  8  Pelzer  v.  Campbell,  15  S.  C.  581,  40  Am.  Rep.  705. 

3  0  Kriz  V.  Peege,  119  Wis.  105,  95  N.  W.  108. 

31  Post,  p.  157. 

32  Johnson  v.  Cummins,  16  N.  J.  Eq.  97,  84  Am.  Dec.  142;  Cole  r.  Van 
jRlper,  44  111.  58.  Contra,  Billings  v.  Baker,  28  Barb.  (N.  Y.)  348.  And  see 
King  V.  Davis  (C.  C.)  137  Fed.  222. 

3  3  Johnson  v.  Cummins,  16  N.  J.  Eq.  97,  84  Am.  Dec.  142;  Shumway  v. 
Cooper,  16  Barb.  (N.  Y.)  556;  Vallance  v.  Bausch,  28  Barb.  (N.  Y.)  633; 
Ransom  v.  Nichols,  22  N.  Y.  110. 

34  Gunn  V.  Hardy,  107  Ala.  609,  18  South.  284=. 

SB  Wood  V.  Wood,  83  N.  Y.  575.     See  post,  p.  156. 


150        wife's  equitable  and  statutory  separate  estate.    (Ch.  5 

the  statutory  separate  estate."  The  two  estates  are,  however,  es- 
sentially different.  Under  the  statute  a  married  woman  takes  the  le- 
gal title  to  both  real  and  personal  property,  wholly  exempt  from  the 
marital  rights  of  the  husband,  and  free  from  his  control  or  interfer- 
ence. The  estate  so  derived  is  no  longer  a  mere  creature  of  equity, 
dependent  on  its  power  alone  for  protection  and  its  principles  for  the 
rights  of  enjoyment ;  but,  in  all  cases  where  by  the  nature  of  the  con- 
veyance, gift,  devise,  or  bequest  an  absolute  legal  title  would  be  vested 
in  a  feme  sole,  the  same  title  will,  by  virtue  of  the  statute,  be  vested 
in  a  feme  covert,  and  the  property  will  be  held,  owned,  possessed,  and 
enjoyed  by  her  the  same  as  though  she  were  unmarried.  Her  rights 
and  the  remedies  incident  thereto  are  legal,  as  distinguished  from  the 
equitable  rights  and  remedies  incident  to  the  equitable  separate  es- 
tate." 

Constitutionality  of  Statutes — Retrospective  Construction. 

In  most  states  there  are  constitutional  provisions  prohibiting  the 
Legislature  from  passing  retrospective  laws.  "Every  statute  which 
takes  away  or  impairs  vested  rights  acquired  under  existing  laws,  or 
creates  a  new  obligation,  or  imposes  a  new  duty,  or  attaches  a  new 
disability  in  relation  to  transactions  or  considerations  already  past, 
must  be  deemed  retrospective,"  and  therefore  in  violation  of  such  con- 
stitutional provisions.^^     Under  such  a  provision,  or  one  having  a 


8  8  Richardson  v.  Stodder,  100  Mass.  52S;  Musson  v.  Trigg,  51  Miss.  172; 
Holliday  v.  Hively,  198  Pa.  335,  47  Atl.  988.  The  Virginia  statute  (Code 
1904,  §  2294)  provides  specifically  that  separate  equitable  estates  are  not 
abolished. 

8  7  Cookson  V.  Toole,  59  111.  515;  Williams  v.  Hugunin,  69  111.  214,  18  Am. 
Rep.  G07;  Conway  v.  Smith,  13  Wis.  140;  Musson  v.  Trigg,  51  Miss.  172; 
Frierson  v.  Williams,  57  Miss.  451.  Compare  Colon  v.  Currier,  22  Barb.  (N. 
y.)  371,  and  Wood  v.  Wood,  83  N.  Y.  575.  Whether  a  separate  estate  Is  an 
equitable  separate  estate  or  a  statutory  separate  estate  must  be  determin- 
ed from  the  language  and  provisions  of  the  instrument  creating  it.  If  the 
instrument  grants  powers  or  imposes  restrictions  not  granted  or  imposetl 
by  the  statute,  but  which  are  yet  consistent  with  the  rules  and  principles  of 
equity,  the  estate  will  be  construed  to  be  an  equitable,  and  not  a  statutory, 
separate  estate.  Jones  v.  Jones,  96  Va.  749,  32  S.  K  463.  See,  also.  Short 
V.  Battle,  52  Ala.  45G,  holding  that  if  the  intent  is  ambiguous,  as  when  there 
is  a  mere  conveyance,  the  statute  steps  in  and  makes  the  estate  a  stat- 
utory separate  estate. 

8  8  Society  for  the  Propagation  of  the  Gospel  v.  Wheeler,  2  Gall.  105,  Fed. 
Cas.  No.  13,156;    Leete  v.  State  Bank,  115  jNIo.  184,  21  S.  W.  788. 


§    79)  STATUTORY    SEPARATE   ESTATE.  151 

similai  prohibitory  effect,  the  Legislature  cannot  take  away  or  impair 
rights  which  have  already  vested  in  the  husband  by  virtue  of  the  mar- 
riage. If  a  husband  has  already  acquired  by  virtue  of  the  marriage 
and  the  existing  law  a  vested  right  in  property  owned  by  his  wife  ei- 
ther at  the  time  of  the  marriage  or  afterwards,  whether  it  be  real  or 
personal,  such  right  cannot  constitutionally  be  taken  from  him  by  leg- 
islative enactment.^*  But  there  is  nothing  in  such  constitutional  pro- 
hibitions to  prevent  the  Legislature  from  defeating  mere  expectancies 
where  no  rights  have  vested  in  him.  There  is  nothing  unconstitu- 
tional in  a  statute  giving  married  women  the  sole  right  to  property 
that  may  afterwards  be  acquired  by  them,  whether  real  or  personal,  or 
to  the  future  income  or  profits  of  land  owned  by  them  at  the  time  the 
statute  is  enacted.  Such  a  statute  neither  defeats  nor  impairs  any 
vested  right  either  of  the  husband  or  of  his  creditors.*** 

39  Cranston  v.  Cranston,  24  R.  I.  297,  53  Atl.  44;  Vanata  v.  Johnson,  170 
Mo.  269,  70  S.  W.  687;  Farrell  v.  Patterson,  43  111.  52;  Dubois  v.  Jackson, 
49  111.  49;  Almond  v.  Bonnell,  76  III.  537;  McNeer  v.  McNeer,  142  111.  388, 
32  N.  E.  681,  19  L.  R.  A.  256;  Arnold  v.  Limeburger,  122  Ga.  72,  49  S.  E. 
812;  Hetzel  v.  Lincoln,  216  Pa.  60,  64  Atl.  866;  Coombs  v.  Read,  16  Gray 
(Mass.)  271;  Dunn  v.  Sargent,  101  Mass.  336;  Carter  v.  Carter,  14  Smedes 
&  M.  (Miss.)  59;  Eldridge  v.  Preble,  34  Me.  148;  Erwin  v.  Puryear,  50  Arlv. 
356,  7  S.  W.  449;  Wythe  v.  Smith,  4  Sawy.  17,  Fed.  Cas.  No.  18,122.  And 
see  Appeal  of  Freeman,  08  Conn.  533,  37  Atl.  420,  37  L.  R.  A.  452,  57  Am. 
St  Rep.  112. 

40  See  Baker's  Ex'rs  v.  Kilgore,  145  U.  S.  487,  12  Sup.  Ct.  943,  36  L.  Ed. 
786;  Allen  v.  Hanks,  136  U.  S.  300,  10  Sup.  Ct.  961,  34  L.  Ed.  414;  Holliday 
V.  McMillan,  79  N.  C.  315,  318;  Quigley  v.  Graham,  18  Ohio  St.  42;  McNeer 
V.  McNeer,  142  111.  3SS,  32  N.  E.  681,  19  L.  R.  A.  256;  Buchanan  v.  Lee, 
69  Ind.  117;  Sperry  v.  Haslam,  57  Ga.  412;  Niles  v.  Hall,  64  Vt.  453,  25  Atl. 
479.  It  has  been  held  that  a  husband's  interest  as  tenant  by  the  curtesy 
initiate,  at  common  law,  in  land  owned  by  his  wife,  is  not  a  vested  right, 
and  may  be  interrupted  by  legislation  before  it  becomes  consummate  by 
the  death  of  the  wife.  Alexander  v.  Alexander,  85  Va.  353,  7  S.  E.  335,  1 
L.  R.  A.  125.  See  Hill  v.  Chambers,  30  Mich.  422.  But  the  better  opiniou 
is  to  the  contrary.  See  McNeer  v.  McNeer,  142  111.  388,  32  N.  E.  081,  19  L 
R.  A.  256;  Jackson  v.  Jackson,  144  111.  274,  33  N.  E.  51,  36  Am.  St.  Rep 
427;    Rose  v.  Sanderson,  38  111.  247.     See,  as  to  the  effect  of  the  separatt 

•  property  acts  on  the  husband's  interest  in  his  wife's  lands,  Prall  v.  Smith, 
31  N.  J.  Law,  244;  Dayton  v.  Dusenbury,  25  N.  J.  Eq.  110;  Eldridge  v.  Pre- 
ble, 34  Me.  148;  Burson's  Appeal,  22  Pa.  164;  Bouknight  v.  Epting,  11  S. 
O.  71.  The  Legislature,  however,  may  clearly  defeat,  by  a  statute,  any  right 
to  curtesy  which  he  would  otherwise  have  in  land  which  may  be  acquired 
by  the  wife  after  the  adoption  of  the  statute.  Baker's  Ex'rs  v.  Kilgore,  su- 
pra;   Allen  V.   Hanks,  supra.     And  it  may  defeat  a  husband's  expectancy 


152        wife's  equitable  and  statutory  separate  estate.    (Ch.  5 

Statutes  taking  from  the  husband  rights  which  are  given  him  at 
common  law  in  his  wife's  property  will  not  be  construed  as  having  a 
retroactive  effect,  even  where  retroactive  laws  are  not  prohibited  by 
the  Constitution  of  the  particular  state,  unless  the  intention  of  the 
Legislature  that  they  shall  have  such  effect  is  clearly  expressed,  and 
the  language  employed  admits  of  no  other  construction.  That  inten- 
tion is  not  to  be  assumed  by  the  mere  fact  that  the  language  of  the 
statute  is  general,  and  might  include  past  as  well  as  future  transac- 
tions.*^ 

Constitutional  prohibitions  against  laws  impairing  the  obligation 
of  contracts  prevent  the  Legislatures  from  passing  laws  impairing  the 
obligation  of  contracts  made  by  a  husband  concerning  property  of  his 
wife,  which  he  had  a  right  to  make  by  virtue  of  the  marriage  and  un- 
der existing  laws ;  but  marriage  is  not  a  contract  within  the  meaning 
of  such  provisions,  and  they  cannot  be  set  up  to  defeat  legislation  tak- 
ing from  a  husband  rights  in  his  wife's  property.*^ 

What  Law  Governs. 

If  the  husband,  by  virtue  of  his  marital  right  under  the  common 
law,  becomes  vested  with  title  to  his  wife's  personalty,  the  subsequent 
removal  of  the  parties  to  a  state  in  which  the  law  declares  that  prop- 


of  a  tenancy  by  the  curtesy;  that  is,  It  may  abolish  curtesy,  or  modify  the 
existing  law,  before  the  husband's  interest  becomes  initiate.  Cooley,  Const. 
Lim.  440;  Wyatt  v.  Smith,  25  W.  Va.  813;  McNeer  v.  McNeer,  142  111.  388, 
32  N.  E.  681,  19  L.  R.  A.  256.  See  Hill  v.  Chambers,  30  Mich.  422.  It  can- 
not defeat  a  vested  estate  by  the  entirety.  Almond  v.  Bonnell,  76  111.  536. 
It  has  also  been  held  by  some  courts  that  a  husband's  right  to  reduce  his 
wife's  choses  in  action  to  possession  is  not  a  vested  right,  even  as  to  ex- 
isting choses  in  action  not  reduced,  and  that  it  may  be  Interrupted  by  leg- 
islation. Alexander  v.  Alexander,  85  Va.  353,  7  S.  E.  335,  1  L.  R.  A.  125; 
Clarke  v.  McCreary,  12  Smedes  &  M.  (Miss.)  347;  Percy  v.  Cockrill,  53  Fed. 
872,  881,  4  C.  C.  A.  73;  Goodyear  v.  Rumbaugh,  13  Pa.  480;  Mellinger's 
Adm'r  v.  Bausman's  Trustee,  45  Pa.  522,  529;  Dilley  v.  Henry's  Ex'r,  25  N. 
J.  Law,  302.  But  the  better  opinion  is  to  the  contrary.  Dunn  v.  Sargent, 
101  Mass.  336;  Westervelt  v.  Gregg,  12  N.  Y.  202,  62  Am,  Dec.  160;  Nor- 
ris  V.  Beyea,  13  N.  Y.  273,  288;  Ryder  v.  Hulse,  24  N.  Y.  372;  Leete  v.  State 
Bank,  115  Mo.  184,  21  S.  W.  788;  Sterns  v.  Weathers,  30  Ala.  712;  Kidd  v. 
Montague,  19  Ala.  619;    Anderson  v.  Anderson,  1  Ala.  Sel.  Gas.  612. 

41  See  Stilphen  v.  Stilpheu,  65  N.  H.  126,  23  Atl.  79;  Leete  v.  State  Bank, 
115  Mo.  184,  21  S.  W.  788,  and  authorities  there  cited.  See,  also,  the  cases 
cited  in  note  40,  supra. 

42  Maynard  v.  Hill,  125  U.  S.  190,  8  Sup.  Ct  723,  31  L.  Ed.  654;  ante,  p. 
5,  and  cases  there  cited. 


§  79)  STATUTORY  SEPARATE  ESTATE.  153 

erty  owned  or  acquired  by  a  married  woman  is  her  separate  property 
will  not  divest  him  of  his  title.* ^  Conversely,  if  a  married  woman 
acquires  a  separate  property  in  personalty  under  the  statute  of  the 
state  of  residence,  the  subsequent  removal  of  the  parties  to  a  state 
where  the  common  law  prevails  will  not  divest  her  of  her  title  and 
vest  it  in  the  husband  by  virtue  of  his  marital  rights.** 

IVhat  Constitutes  Wife's  Separate  Property. 

As  was  stated  above,  the  statutes  generally  provide  that  the  proper- 
ty owned  by  a  woman  at  the  time  of  her  marriage,  or  thereafter  ac- 
quired by  her  in  any  legal  manner,  is  her  separate  property.*^  Under 
these  statutes  it  has  been  held  that  a  married  woman  has  a  separate 
estate  in  property  purchased  on  her  own  credit,*'  or  with  her  own 
money  *^  or  earnings,*^  and  it  does  not  affect  her  rights  that  her 
husband  acted  as  her  agent,*®  or  took  title  in  his  own  name,**®  or  even 
that  he  paid  a  portion  of  the  purchase  money,  if  the  intent  was  that 
the  property  should  be  her  separate  property.'^     Nor  does  the  fact 

48  Ellington's  Adm'r  v.  Harris,  127  Ga.  85,  56  S.  E.  134,  119  Am.  St.  Rep. 
320;  Meyer  v.  McCabe,  73  Mo.  236;  Birmingham  Waterworks  Co.  v.  Hume, 
121  Ala.  168,  25  South.  806,  77  Am.  St.  Rep.  43. 

44  Rice  V.  Shipley,  159  Mo.  399,  60  S.  W.  740. 

4B  See  ante,  p.  148. 

4  8  Merrell  v.  Purdy,  129  Wis.  331,  109  N.  W.  82;  Kriz  v.  Peege,  119  Wis. 
105,  95  N.  W.  108;  Citizens'  Loan  &  Trust  Co.  v.  Witte,  116  Wis.  00,  92  N. 
W.  443;  Hibernian  Sav.  Inst.  v.  Luhn,  34  S.  C.  175,  13  S.  E.  357;  Wilder  v. 
Richie,  117  Mass.  382;  Sidway  v.  Nichol,  62  Ark.  146,  34  S.  W.  529;  Reeves  v. 
McNeill,  127  Ala.  175,  28  South.  623  ;  Conkling  v.  Levie,  66  Neb.  132,  94  N.  W. 
988  (second  case) ;  Hibbard  v.  Heckart,  88  Mo.  App.  544.  And  it  does  not  affect 
her  rights  that  she  had  no  prior  separate  estate  to  form  a  basis  of  credit. 
Trapnell  v.  Conklyn,  37  W.  Va.  242,  16  S.  E.  570,  38  Am.  St.  Rep.  30 ;  Mes- 
ser  V.  Smyth,  58  N.  H.  298;    Kriz  v.  Peege,  119  Wis.  105,  95  N.  W.  108. 

4T  Gebhart  v.  Gebhart  (Tex.  Civ.  App.)  61  S.  W.  964;  Oaks  v.  West  (Tex. 
Civ.  App.)  64  S.  W.  1033;  Marshall  Field  &  Co.  v.  McFarlane  (Iowa)  84  N. 
W.   1030. 

4  8  Green  v.  Forney,  134  Iowa,  316,  111  N.  W.  976;  Rath  v.  Rankins,  33 
S.  W.  832,  17  Ky.  Law  Rep.  1120;  Kinsey  v.  Feller,  64  N.  J.  Eq.  485,  51  Atl. 
485. 

.   4  9  Reeves  v.  McNeill,  127  Ala.  175,  28  South.  623. 

5  0  Oaks  v.  West  (Tex.  Civ.  App.)  (54  S.  W.  1033.  See,  also,  Adoue  v.  Spen- 
cer, 62  N.  J.  Eq.  782,  49  Atl.  10,  56  L.  R,  A.  817,  90  Am.  St.  Rep.  484,  hold- 
ing that  the  fact  that  the  husband  has  taken  possession  of  the  wife's  sepa- 
rate estate  does  not  raise  a  presumption  of  a  gift  to  him,  and  that  he  must 
account. 

61  Gebhart  v.  Gebhart  (Tex.  Civ.  App.)  61  S.  W.  964;    Patterson  t.  Patter- 


154        wife's  equitable  and  statutory  separate  estate.    (Ch.  5 

that  the  husband  rendered  services  in  connection  with  the  property 
render  it  less  her  separate  property  or  give  his  creditors  any  claim 
thereon." 2  So,  too,  the  increase  of  or  income  from  her  separate  es- 
tate is  her  separate  property."^ 

In  many  states  her  earnings  in  activities  not  connected  with  her 
household  duties,"*  and  in  some  damages  for  torts  committed  against 
her,""  are  her  separate  property. 

When  property  is  conveyed  to  husband  and  wife  jointly,  they  take, 
as  we  have  seen,  as  tenants  by  the  entirety;  that  is,  neither  of  them 
takes  an  undivided  share  separately  from  the  other,  but  each  has  an 
interest  in  the  whole,  and  on  the  death  of  either  the  property  belongs 
to  the  other.  Neither  can  defeat  the  rights  of  the  other  as  survivor."* 
It  has  been  held,  therefore,  that  the  wife  has  not  such  an  interest  in 
such  property  that  it  can  be  called  her  separate  property  within  the 
meaning  of  the  separate  property  acts."^ 

Management  and  Control  of  Wife's  Separate  Property. 

Though  in  some  states  the  statute  provides  that  the  management 
and  control  of  the  wife's  separate  property  shall  be  vested  in  the  hus- 

son,  197  Mass.  112,  83  N.  E.  364.  See,  also,  Dyer  v.  Pierce  (Tex.  Civ.  App.) 
60  S.  W.  441. 

52  Donovan  v.  Olson,  47  Wash.  441,  92  Pac.  276;  Green  v.  Forney,  134 
Iowa,  316,  111  N.  W.  976;  Hibbard  v.  Heckart,  88  Mo.  App.  544;  Trapnell 
V.  Conklyn,  37  W.  Va.  242,  16  S.  B.  570,  38  Am.  St.  Rep.  30.  See,  also,  Car- 
son v.  Carson,  204  Pa.  446,  54  Atl.  348. 

63  Thorn  v.  Anderson,  7  Idaho,  421,  63  Pac.  592;  Carson  v.  Carson,  204 
Pa.  446,  54  Atl.  348. 

c4Nuding  v.  Urich,  169  Pa.  289,  32  Atl.  409;  Turner  v.  Davenport,  03  N. 
J.  Eq.  288,  49  Atl.  463 ;  Larkin  v.  Woosley,  109  Ala.  258,  19  South.  520 ;  Vin- 
cent V.  Ireland,  2  Pennewill  .(Del.)  580,  49  Atl.  172;  Healey  v.  P.  Ballantine 
&  Sons.  66  N.  J.  Law,  339,  49  Atl.  511;  Furth  v.  March,  101  Mo.  App.  329,  74 
S.  W.  147;  Roberts  v.  Haines,  112  Ga.  842,  38  S.  E.  109;  Hamilton  v.  Hamil- 
ton's Estate,  26  Ind.  App.  114,  59  N.  E.  344;  Perry  v.  Blumenthal,  119  App. 
Div.  663,  104  N.  Y.  Supp.  127. 

66  Blaechinska  v.  Howard  Mission  for  Little  Wanderers,  130  N.  Y.  497,  29 
N.  E.  755,  15  L.  R.  A.  215;  Healey  v.  P.  Ballantine  &  Sons,  66  N.  J.  Law, 
339,  49  Atl.  511.  See,  also,  Harmon  v.  Old  Colony  R.  Co.,  165  Mass.  100, 
42  N.  B.  505,  30  L.  R.  A.  658,  52  Am.  St.  Rep.  499,  and  Harris  v.  Webster, 
58  N.  H.  481. 

5  6  Ante,  p.  109,  "Estate  by  Entirety." 

6  7  Speier  v.  Opfer,  73  Mich.  35,  40  N.  W.  909,  2  L.  R.  A.  345,  16  Am.  St. 
Rep.  556;  Curtis  v.  Crowe,  74  Mich.  99,  41  N.  W.  876.  But  see  Dreutzer  v. 
Lawrence,  58  Wis.  594,  17  N.  W.  423,  and  Frost  v.  Frost,  200  Mo.  474,  98 
S.  W.  527,  lis  Am.  St.  Rep.  689. 


§   80)        POWER  TO  DISPOSE  OF  STATUTORT  SEPARATE  ESTATE.  155 

band,^^  in  the  absence  of  such  a  provision  it  is  generally  held  that 
she  can  use,  manage,  and  control  her  property  as  if  she  were  unmar- 
ried,*^®  subject,  however,  to  certain  restrictions  on  her  power  to  mort- 
gage or  convey  her  property  ®°  and  to  charge  the  same  for  debts.®^ 


PO^VER   TO  DISPOSE  OF   STATUTORY   SEPARATE   ESTATE. 

80.  A  married  w^oman  has  no  poxeer  to  dispose  of  her  statutory  sepa- 
rate estate  unless  the  poTtrer  is  expressly  or  impliedly  given 
her  by  the  statute.  Though  some  courts  hold  otherwise  in  the 
case  of  personal  property,  the  rule  is  that  a  statute  merely 
giving  the  right  to  hold  and  enjoy,  or  the  jus  tenendi,  does 
not  include  the  jus  disponendL 

A  statute  which  merely  gives  a  married  woman  the  right  to  hold, 
own,  possess,  and  enjoy  as  her  separate  property  real  and  personal 
property  owned  before  or  acquired  after  marriage,  or  which  gives  her 
the  right  to  hold  such  property  to  her  sole  and  separate  use,  as  if  she 
were  a  single  female,  does  not  confer  on  her  the  power  to  dispose  of 
real  estate.®^  The  jus  disponendi  will  not  be  implied  from  a  bare  jus 
tenendi.**  Under  a  statute  providing  that  a  married  woman  shall 
have  the  same  rights  over  her  separate  property  as  if  unmarried,  it 
has,  however,  been  held  that  she  has  the  right  to  dispose  of  it.'* 

In  respect  to  personalty,  it  has  been  held  in  many  states  that  the  jus 
disponendi  is  a  necessary  incident  to  the  separate  ownership  of  person- 
al property.*''     Some  courts  have  nevertheless  refused  to  recognize 


6  8  Sayles'  Ann.  Civ.  St.  Tex.  1897,  art.  2967;    Rev.   St  Fla.  1892,  §  2070. 

6  8  Parent  v.  Callerand,  61  111.  97;    Southard  v.  Plummer,  36  Me.  6i;    Ago 

V.  Canner,  167  Mass.  390,  45  N.  E.  754;  Pomeroy  v.  Manhattan  Life  Ins,  Co., 

40  111.  398;   Barton  v.  Barton,  32  Md.  214;    Sencerbox  v.  First  Nat.  Bank  of 
Omaha,  14  Idaho,  95,  93  Pac.  3G9. 

60  See  post,  p.  162. 
81  See  post,  p.  161. 

62  Cole  V.  Van  Riper,  44  111.  58;  Bressler  v.  Kent,  61  111.  426,  14  Am.  Rep. 
67 ;   Naylor  v.  Field,  29  N.  J.  Law,  2S7. 

63  Miller  v.  Wetherby,  12  Iowa,  415 ;  Cole  v.  Van  Riper,  44  111.  58;  Bress- 
ler V.  Kent,  61  111.  426,  14  Am.  Rep.  67;    Naylor  v.  Field,  29  N.  J.  Law,  2S7. 

64Ecal  V.  Warren,  2  Gray  (Mass.)  447;    Harris  v.  Spencer,  71  Conn.  233, 

41  Atl.  773. 

65  Naylor  v.  Field,  29  N.  J.  Law,  287;  Harding  v.  Cobb,  47  Miss.  599; 
Beard  v.  Dedolph,  29  Wis.  136.  See,  also,  Townsend  v.  Huutzinger  (Ind. 
App.)  S3  N.  E.  619 


156        wife's  equitable  and  statutory  separate  estate.     (Ch.  5 

the  distinction.®"  In  most  of  the  states,  however,  the  power  of  mar- 
ried women  to  dispose  of  their  separate  property  has  been  definitely 
granted  or  denied  in  the  statutes  creating  a  separate  estate."^ 


PO"WER  TO  CHARGE  STATUTORY  SEPARATE  ESTATE  BY  CON- 
TRACT. 

81.  In    the    absence    of    express    enactment,    statutes    g^ivlng    married 

\romen  separate  property  do  not  impliedly  autliorize  a  mar- 
ried -nroman  to  contract  generally;  bnt  she  can  contract  so 
as  to  render  her  statutory  separate  property  liable. 

(a)  "Where  the  contract  TFOuld  bind  her  equitable  separate  property. 

(b)  'Where    the    statute    expressly   authorizes   her   to   contract    xvith 

reference  to  her  separate  property. 

(c)  "Where  the  statute  enacts  that  she  may  enjoy  her  separate  prop- 

erty as  if  sole. 

82.  Statutes  authorizing  married  iiromen  to   acquire   and  hold  prop- 

erty authorize  the  performance  of  all  acts  and  the  making  of 
all  contracts  that  are  necessarily  incident  thereto,  but  do  not 
abrogate  the  common  law  further  than  is  necessary  to  give 
them   full    effect. 

83.  Equitable  jurisdiction  over  equitable  separate  property  has  been 

extended  in  some  states  to  statutory  separate  property,  but 
not  in  all  states.  Contracts  concerning  such  property  are 
therefore  enforceable. 

(a)  In  some  states,  in  equity  only. 

(b)  In  other  states,  at  law  only. 

(c)  In  other  states,  either  at  law  or  in  equity. 

Difficult  questions  sometimes  arise  in  determining  the  extent  to 
which  the  statutes  giving  the  wife  the  right  to  hold  and  enjoy  her 
separate  property  free  from  the  control  of  her  husband  have  removed 
the  common-law  disability  of  married  women  to  contract,  and  there 
is  considerable  conflict  in  the  cases  on  some  points.  It  is  clear  that, 
while  they  give  a  married  woman  certain  rights  in  regard  to  her  stat- 
utory separate  property  which  she  did  not  have  at  common  law,  they 
fall  far  short  of  placing  her  in  the  position  of  a  feme  sole.    They  are 

6  6  Swift  V.  Luce,  27  Me.  285;  Brown  v.  FIfield,  4  Mich.  322;  Scott  r. 
Scott,  13  Ind.  225;    Moore  v.  Cornell,  68  Pa.  320. 

67  See  the  statutes  of  the  various  states.  In  Indiana  it  Is  held  that  a 
statute  restricting  the  right  of  a  married  woman  to  convey  her  realty  does 
not  affect  her  right  to  convey  personalty.  Townsend  y.  Huntzinger  (Ind. 
App.)  83  N.  E.  619. 


§§  81-83)     POWER  TO  CHARGE  STATUTORY  ESTATE  BT  CONTRACT.       157 

held  to  abridge  the  rights  of  the  husband,  and  remove  the  disabilities 
of  the  wife,  only  so  far  as  they  expressly  do  so,  and  are  held  not  to 
impliedly  abrogate  the  common  law  beyond  their  terms.®*  Such  stat- 
utes, therefore,  in  the  absence  of  any  enactment  allowing  married  wo- 
men to  contract  as  if  sole,"*  do  not  enable  her  to  make  contracts  not 
connected  with  her  separate  property.'^"  Whatever  power  the  wife 
has  to  contract  is  given  her  by  the  statutes.  In  Michigan,  as  in  many 
other  states,  the  statutes  have  not  given  her  the  power  to  contract  ex- 
cept in  regard  to  her  separate  property.  It  has  therefore  been  held  in 
that  state  that  as  real  property  held  by  husband  and  wife  jointly  is 
held  by  them  as  tenants  by  the  entirety,  and  cannot  be  regarded  as  the 
wife's  separate  property,  she  is  not  liable  on  a  contract  made  jointly 
with  her  husband  for  improvements  on  such  property.^^ 

By  the  statutes  of  some  states  the  wife  is  expressly  given  the  power 
to  make  contracts  "relating  to,"  or  "with  reference  to,"  or  "in  respect 
to,"  etc.,  her  separate  estate.''^  These  expressions  are  generally  held 
to  include  whatever  is  necessary  to  the  full  enjoyment  and  use  of  the 
property  ;^^  but  a  possible  incidental  benefit,  as  when  a  woman  in- 
dorses a  note  for  the  benefit  of  a  corporation  in  which  she  is  a  stock- 

68  Speier  v.  Opfer,  73  Mich.  35,  40  N.  W.  909,  2  D.  R.  A.  345,  16  Am.  St. 
Rep.  556;  Russel  v.  Bank,  39  Mich.  671,  33  Am.  Rep.  444;  and  cases  here- 
after cited. 

8»  Such  statutes  have  been  enacted  in  many  states.  See  Crum  v.  Sawyer, 
132  111.  443,  24  N.  B.  956;  Young  v.  McFadden,  125  Ind.  254,  25  N.  E.  284 
(except  contracts  of  suretyship);  McCorkle  v.  Goldsmith,  60  Mo.  App.  475 
(except  contracts  with  husband).  And  see  Peter  Adams  Paper  Co.  v,  Cas- 
sard,  206  Pa.  179,  55  Atl.  949. 

7  0  Russel  V.  Bank,  39  Mich.  671,  33  Am.  Rep.  444;  Speier  v.  Opfer,  73 
Mich.  35,  40  N.  W.  909,  2  L.  R.  A.  345,  16  Am.  St.  Rep.  556;  Bank  v.  Par- 
tee,  99  U.  S.  325,  25  L.  Ed.  390;  Bank  of  Commerce  v.  Baldwin,  12  Idaho, 
202,  85  Pac.  497;  Id.,  14  Idaho,  75,  93  Pac.  504;  State  v.  Robinson,  143  N. 
C.  620,  56  S.  E.  918;  Gary  v.  Dixon,  51  Miss.  593;  Jenne  v.  Marble,  37  Mich. 
319;  Hodges  v.  Price,  18  Fla.  342;  O'Daily  v.  Morris,  31  Ind.  Ill;  McKee 
V.  Reynolds,  26  Iowa,  578;  Pond  v.  Carpenter,  12  Minn.  430  (Gil.  31.5);  Ritch 
V.  Hyatt,  3  MacArthur  (D.  C.)  536.  See,  also,  Thompson  v.  Mihnich,  227  111. 
430,  81  N.  B.  336. 

•  71  Speier  v.  Opfer,  73  Mich.  35,  40  N.  W.  909,  2  L.  R.  A.  345,  16  Am.  St. 
Rep.  556;  Curtis  v.  Crowe,  74  Mich.  99,  41  N.  W.  876.  But  see  Dreutzer 
v.  Lawrence,  58  Wis.  594,  17  N.  W.  423. 

7  2  See  the  statutes  of  the  various  states. 

78Marlow  v.  Barlew,  53  Cal.  456;  Merrell  v.  Purdy,  129  Wis.  331,  109  N. 
W.  82;  Ball  &  Sheppard  v.  Paquin,  140  N.  C.  83,  52  S  E.  410,  3  L.  R.  A. 
(N.  S.)  307;   Parker  v.  Kane,  4  Allen  (Mass.)  346;   Basford  v.  Pearson,  7  Al- 


158        wife's  equitable  and  statutory  separate  estate.    (Ch.  5 

holder,  is  too  remote.^*  "Such  a  contract,"  said  Judge  Cooley,  "is 
not  within  the  words  of  the  statute.  Neither  is  it  within  the  spirit  of 
the  statute,  for  that  had  in  view  the  relieving  of  the  wife  of  disabiHties 
which  operated  unfairly  and  oppressively,  and  which  hampered  her  in 
the  control  and  disposition  of  her  property  for  the  benefit  of  herself 
and  her  family.  It  was  not  its  purpose  to  give  her  a  general  power 
to  render  herself  personally  responsible  upon  engagements  for  any 
and  every  consideration  which  would  support  a  promise  at  the  com- 
mon law.  *  *  *  The  test  of  competency  is  to  be  found  in  this: 
that  it  does  or  does  not  deal  with  the  individual  estate.  Possible  in- 
cidental benefits  cannot  support  it."  A  contract  to  sell  her  separate 
estate  is  "in  respect  to"  her  separate  property  ;^°  and  so,  too,  is  a 
mortgage  thereon. ''' 

Notes  and  other  obligations,  given  for  the  price  of  property,  on  its 
purchase  by  her,  have  been  held  to  be  contracts  "in  respect  to"  her 
separate  property/^  though  there  are  cases  holding  the  contrary.'^ ^ 

len  (Mass.)  504;  Burr  v.  Swan,  118  Mass.  588;  Albin  v.  Lord,  39  N.  H.  190, 
202;  Batchelder  t.  Sargent,  47  N.  H.  262;  McCormick  v.  Holbrook,  22  Iowa, 
487,  92  Am.  Dec.  400. 

7  4  Russel  V.  People's  Sav.  Bank,  39  Mich.  671,  33  Am.  Rep.  444. 

75  Dunn  V.  Stowers,  104  Va.  290,  51  S.  E.  366;  Basford  v.  Pearson,  7  Al- 
len (Mass.)  504;  Baker  v.  Hathaway,  5  Allen  (Mass.)  103;  Richmond  v.  Tib- 
bies, 26  Iowa,  474.  See,  also,  Dobbins  v.  Thomas,  26  App.  D.  C.  157,  hold- 
ing that  a  contract  made  by  a  married  woman  for  the  exchange  of  real  es- 
tate and  for  the  purchase  of  personal  property  must,  under  Code,  §  1156 
(31  Stat.  1374,  c.  854),  be  deemed  to  have  been  made  with  reference  to  her 
separate  estate;  there  being  no  contrai-y  intent  expressed.  Compare  Isphord- 
ing  V.  Wolfe,  36  lud.  App.  250.  75  N.  E.  598.  holding  that  a  contract  to  pay 
for  servic*es  rendered  by  a  broker  on  the  sale  of  the  land  of  a  married  wo- 
man was  valid. 

7  6Marlow  v.  Barlew,  53  Cal.  456;  Messer  v.  Smyth,  58  N.  H.  298;  Col- 
lier V.  Doe  ex  dem.  Alexander,  142  Ala.  422,  38  South.  244;  Mercantile  Exch. 
Bank  v.  Taylor,  51  Fla.  473,  41  South.  22.  Power  to  borrow  money,  see 
Feather  v.  Feather's  Estate,  116  Mich.  384,  74  N.  W.  524 ;  June  v.  Labadie, 
138  Mich.  52,  100  N.  W.  996;  Arnold  v.  McBride,  78  Ark.  275,  93  S.  W.  989; 
Sidway  v.  Nichol,  62  Ark.  146,  34  S.  W.  529;  Scott  v.  Collier,  166  Ind.  184, 
78  N.  E.  184;    Rood  v.  Wright,  124  Ga.  849,  53  S.  E.  390. 

77  Messer  v.  Smyth,  58  N.  H.  298;  Scott  v.  Collier,  166  Ind.  644,  78  N. 
E.  184;  Booth  Mercantile  Co.  v.  Murphy,  14  Idaho,  212,  93  Pac.  777;  Mer- 
rell  V.  Purdy,  129  Wis.  331,  109  N.  W\  82;    Dailey  v.  Singer  Manufacturing 


78  Jones  V.  Crosthwaite,   17  Iowa,  393;    Schneider  v.  Garland,  1  Mackey 
(D.  C.)  350;    Carpenter  v.  Mitchell,  50  111.  470. 


§§  81-83)     POWER  TO  CHARGE  STATUTORY  ESTATE  BY  CONTRACT.       159 

Many  illustrations  might  be  cited  to  show  that  the  general  rule  is 
that  a  married  woman  has  no  powers  now  which  she  did  not  have  at 
common  law,  except  such  as  are  given  her  by  the  statute  and  such  as 
are  necessarily  implied  as  incidental  thereto/"  Thus,  where  a  stat- 
ute authorized  a  married  woman  "to  contract,  sell,  transfer,  mortgage, 
convey,  devise,  and  bequeath"  her  separate  statutory  property  "in  the 
same  manner  and  with  like  effect  as  if  unmarried,"  a  transfer  of  a  note 
owned  by  a  married  woman,  by  indorsement,  as  collateral  security  for 
the  debt  of  another,  was  held  void,  as  the  statute  did  not  empower 
her  to  enter  into  a  contract  of  suretyship.^** 

It  has  been  shown  in  the  preceding  section  that,  under  a  statute  pro- 
viding that  a  married  woman  shall  have  the  same  rights  over  her  sep- 
arate property  as  if  unmarried,  she  has  the  right  to  dispose  of  it,*^ 


Co.,  88  Mo.  301;  Tillman  v.  Shackleton,  15  Mich.  447,  93  Am.  Dec.  198;  Kriz 
V.  Peege,  119  Wis.  105,  95  N.  W.  108,  Under  the  New  York  married  wo- 
man's act,  a  married  woman  may  borrow  money  and  purchase  upon  credit 
any  property  necessary  or  convenient  for  the  purpose  of  commencing,  as 
well  as  carrying  on,  a  trade  or  business.  Frecking  v.  RoUand,  53  N.  Y.  422. 
A  mortgage  made  by  a  married  woman  as  part  of  the  transaction  by  which 
she  gains  title  to  the  land  is  valid,  though  it  also  secures  a  debt  of  her  hus- 
band or  some  other  person.     Conkling  v.  Levie,  66  Neb.  132,  94  N.  W.  988. 

7  9  Bailey  v.  Fink,  129  Wis,  373,  109  N.  W.  86;  Citizens'  State  Bank  v. 
Smout,  62  Neb,  450,  86  N.  W.  1068;  Stack  v.  Padden,  111  Wis.  42,  86  N.  W, 
568;  Burns  v.  Cooper,  140  Fed.  273,  72  C.  C.  A.  25;  Smith  v.  Howe,  31  Ind. 
233;  Grand  Island  Banking  Co.  v.  Wright,  53  Xeb.  574,  74  N.  W,  82;  Farm- 
ers' Bank  v.  Boyd,  67  Neb,  497,  93  N,  W.  676;  June  v,  Labadie,  132  Mich. 
135,  92  N.  W.  937,  where  it  was  held  that  a  contract  to  pay  the  board  of 
an  adult  sister  and  her  child  was  invalid  as  not  having  reference  to  the 
promisor's  separate  estate.  Power  to  contract  to  pay  for  board  and  lodg- 
ing while  living  with  her  husband,  see  Chickering-Chase  Bros.  Co.  v,  L.  J. 
White  &  Co.,  127  Wis.  83,  106  N.  W.  797;  Ruhl  v,  Heintze,  97  App.  Div,  442, 
89  N.  Y.  S.  1031.  Debts  incurred  for  family  expenses,  see  Lane  v.  Moon 
(Tex.  Civ.  App.)  103  S.  W.  211;  Breed  v.  Breed,  125  Wis.  100,  103  N.  W,  271; 
Carter  v.  Wann,  45  Ala,  343,  overruling  Cunningham  v.  Fontaine,  25  Ala. 
644;  Feiner  v.  Boynton,  73  N,  J,  Law,  136,  62  Atl,  420,  Effect  of  statutes 
making  both  husband  and  wife  liable,  see  Russell  v.  Graumann,  40  Wash, 
667,  82  Pac.  998;  McCartney  &  Sons  Co.  v.  Carter,  129  Iowa,  20,  105  N. 
W.  339,  3  L.  R,  A.  (N.  S.)  145. 

8  0  Russel  V,  People's  Sav.  Bank,  39  Mich,  671,  33  Am.  Rep,  444.  See, 
also.  Hall  v.  Hall,  118  Ky,  656,  82  S,  W,  269;  Garrigue  v.  Keller,  164  Ind. 
076,  74  N.  E,  523,  69  L.  R,  A,  870,  108  Am.  St.  Rep,  324;  Field  v.  Camp- 
bell, 104  Ind,  389,  72  N,  E.  260,  108  Am,  St,  Rep.  301;  Sample  v.  Guyer,  143 
Ala.  613,  42  South.  106;    Gross  v.  Whiteley,  128  Ga.  79,  57  S.  E.  94. 

81  Beal  Y.  Warren,  2  Gray  (Mass.)  447;    ante,  p.   155. 


160        wife's  equitable  and  statutory  separate  estate.    (Ch.  5 

or  to  agree  to  dispose  of  it,*^  but  that  the  jus  disponendi  will  not  be 
implied  from  a  bare  jus  tenendi ;  ^^  that,  for  instance,  a  statute  giving 
the  right  to  hold,  own,  possess,  and  enjoy,^*  or  to  hold  to  her  sole  and 
separate  use  as  if  she  were  a  single  female,"^  does  not  include  the 
power  to  dispose  of  real  estate.  It  has  also  been  pointed  out  that  in 
some  states  it  has  been  held  that  the  rule  is  different  in  the  case  of 
personalty,  and  that  the  jus  disponendi  is  a  necessary  incident  to  the 
separate  ownership  of  personal  property,^^  but  that  this  distinction  is 
not  recognized  in  all  the  states.®^  Where  there  is  no  express  statu- 
tory authority  to  contract,  but  it  is  enacted,  as  in  many  states,  that 
married  women  may  hold,  enjoy,  and  possess  their  separate  property 
as  if  sole,  they  may  make  all  such  contracts  as  are  necessarily  inci- 
dent to  such  enjoyment.**  Under  such  a  statute  a  married  woman 
has  been  held  to  have  the  power  to  contract  for  labor  and  materials 
for  the  construction  of  a  hotel  on  her  separate  real  estate,  on  the 
ground  that  the  intention  of  the  statute  could  not  be  accomplished 
unless  it  also  removed  the  common-law  disability  to  the  extent  of  em- 
powering the  wife  to  make  all  contracts  necessary  and  convenient  to 
the  full  enjoyment  of  her  estate.*"  And  generally  it  may  be  said  that 
she  has  power  to  contract  and  charge  her  separate  estate  for  improve- 
ments thereon,""  for  work  and  labor  in  the  cultivation  of  her  farm,®^ 


82  Dreutzer  v.  Lawrence,  58  Wis.  594,  17  N.  W.  423. 

83  Miller  v.  Wetherby,  12  Iowa,  415.  And  see  Cole  v.  Van  Riper,  44  III. 
58;  Bressler  v.  Kent,  61  111.  426,  14  Am.  Rep.  67;  Naylor  v.  Field,  29  N.  J. 
Law,  287;   ante,  p.  153. 

8  4  Cole  V.  Van  Riper,  44  111.  58;  Bressler  v.  Kent,  61  III.  426,  14  Am. 
Rep.  67. 

86  Naylor  v.  Field,  29  N.  J.  Law,  287. 

86  Naylor  v.  Field,  29  N.  J.  Law,  287;  Harding  v.  Cobb,  47  Miss.  599; 
Beard  v.  Dedolph,  29  Wis.  136;    ante,  p.  155. 

8  7  Swift  V.  Luce,  27  Me.  285;  Brown  v.  Fifield,  4  Mich.  322;  Scott  v. 
Scott,  13  Ind.  225;  Moore  v.  Cornell,  68  Pa.  320. 

8  8  Conway  v.  Smith,  13  Wis.  140;  Cookson  v.  Toole,  59  111.  519;  Williams 
V.  Hugunin,  69  111.  214,  18  Am.  Rep.  607;  Smith  v.  Howe,  31  Ind.  233;  Lind- 
ley  V.  Cross,  Id.  106,  99  Am.  Dec.  610;  Duren  v.  Getchell,  55  Me.  241;  Ma- 
hon  V.  Gormley,  24  Pa.  80;  Wright  v.  Blackwood,  57  Tex.  644. 

8  9  Conway  v.  Smith,  13  Wis.  140. 

90  Bankard  v.  Shaw,  199  Pa.  623,  49  Atl.  230;  Popp  v.  Connery,  138  Mich 
84,  101  N.  W.  54,  110  Am.  St.  Rep.  304;  McAnally  v.  Hawkins  Lumber  Co., 
109  Ala.  397,  19  South.  417;  Vail  v.  Meyer,  71  Ind.  159;  Colvin  v.  CuiTler, 
22  Barb.  (N.  Y.)  371. 

»i  Cookson  V.  Toole,  59  111.  515. 


§§  81-83)      POWER  TO  CHARGE  STATUTORY  ESTATE  BY  CONTRACT.       161 

and  for  the  purchase  of  the  necessary  tools  and  live  stock  for  the 
farm.^- 

While  the  courts  have  generally  said  that  married  women's  sepa- 
rate property  acts,  being  in  derogation  of  common  law,  will  be  strict- 
ly construed,  this  does  not  mean  that  the  court  can  refuse  to  give  full 
effect  to  their  terms.  It  was  said  in  a  leading  case,  under  a  statute 
making  it  lawful  for  a  feme  covert  to  acquire  title  to  real  estate  by 
gift  or  grant,  and  to  hold  it  as  her  separate  estate,  that  the  contract 
of  a  married  woman  to  assume  the  payment  of  a  mortgage  as  part  of 
the  purchase  money  for  land  conveyed  to  her  was  valid ;  that  the  law 
did  not  intend  that  she  could  acquire  property  without  paying  for  it ; 
and  that  the  power  to  acquire  and  hold  included  the  right  to  do  all 
acts  reasonably  necessary  in  acquiring  and  holding.^^  As  has  been 
said  by  the  Pennsylvania  court:  "Her  power  to  purchase  gives  her 
a  right  to  contract  for  the  payment  of  the  purchase  money  so  far  as 
to  charge  the  property  with  such  incumbrance  as  may  be  agreed  upon 
to  secure  its  payment."  "* 

Pozver  to  Charge  Separate  Property  for  Debts  of  Husband. 

Though  the  statutes  creating  the  separate  estate  of  married  women 
usually  provide  that  the  property  shall  be  held  by  the  wife  free  from 
the  debts  of  her  husband,^^  the  question  has  often  arisen  whether  the 
wife  has  power  to  charge  her  estate  with  such  debts.  Attention  has 
already  been  called  to  the  fact  that  in  most  states  the  wife  is  prohibit- 
ed from  entering  into  a  contract  of  suretyship,^"  and  that  as  a  general 
rule,  in  the  absence  of  a  statute  giving  her  unlimited  power  to  con- 
tract, she  can  charge  her  separate  estate  only  by  contracts  with  ref- 
erence thereto  and  for  the  benefit  of  herself  or  her  estate.*'^  In  ac- 
cordance with  these  rules  it  is  generally  held  that  a  married  woman 
cannot  charge  her  separate  estate  by  a  contract  of  suretyship  for  the 
purpose  of  securing  her  husband's  debt,  or  by  an  assumption  of  his 


82  Batchelder  v.  Sargent,  47  N.  H.  262. 

83  Huyler's  Ex'rs  v.  Atwootl,  26  N.  J.  Eq.  504.  And  see,  to  the  same  ef- 
fect, Tiemeyer  t.  Turnquist,  85  N.  Y.  516,  30  Am.  Rep.  674;  Edwards  v. 
Stacey,  113  Tenn.  257,  82  S.  W.  470,  106  Am.  St  Rep.  831;  Crosby  v.  Wa- 
ters, 28  Pa.  Super.  <;t.  559;  Cashman  v.  Henry,  75  N.  Y.  103,  31  Am.  Rep. 
437;    Bower's  Appeal,  68  Pa.  128. 

84  Bower's  Appeal,  68  Pa.  128.  ee  See  ante,  p.  118, 
80  See  the  statutes  of  the  various  states.  e?  See  ante,  p.  157. 

TiFr.P.&  D.Rel.(2d  Ed.)— 11 


1G2        wife's  equitable  and  statutory  separate  estate.    (Ch,  5 

debt.®^  So  it  has  been  held  that  she  cannot  sell  her  property  to  a 
creditor  of  the  husband  in  extinguishment  of  his  debt.'®  It  is,  how- 
ever, generally  conceded  that  she  may  borrow  money  and  give  it  to 
her  husband  to  be  used  in  the  payment  of  his  debts,  or  may  so  apply 
it  directly,^  or  she  may  sell  her  property — the  purchaser  not  being  a 
creditor — and  apply  the  proceeds  to  the  payment  of  her  husband's 
debts.2 

In  determining  the  validity  of  contracts  the  effect  of  which  is  to 
charge  the  separate  estate,  an  important,  and,  indeed,  controlling,  ele- 
ment is  whether  there  is  manifest  an  intent  to  charge ;  '  such  intent  be- 
ing shown  in  the  instrument  itself.*  Thus  it  has  been  held  that  a  mar- 
ried woman  may  make  a  valid  mortgage  to  secure  her  husband's  debt, 
as  the  intent  to  charge  her  separate  estate  is  thereby  manifested."  The 
liability  is,  however,  limited  to  the  property  in  regard  to  which  the 
intent  is  thus  shown,  and  there  can  be  no  judgment  for  a  deficiency 
against  the  wife.® 

Equitable  or  Legal  Jurisdiction. 

Contracts  which,  before  the  passage  of  these  acts,  were  binding 
in  equity  on  the  wife's  equitable  separate  estate,  are  under  most  stat- 
utes binding  in  equity  on  the  wife's  statutory  separate  estate.     While 


88  Gross  V.  Whiteley,  128  Ga.  79,  57  S.  B.  94. 
8  0  Gross  V.  Whiteley,  128  Ga.  79,  57  S.  E.  94. 

1  Gross  V.  Whiteley,  128  Ga.  79,  57  S.  E.  94;  Sample  v.  Guyer,  143  Ala. 
613,  42  South.  lOG;   Rood  v.  Wright,  124  Ga.  849,  53  S.  B.  390. 

2  Gross  V.  Whiteley,  128  Ga.  79,  57  S.  B.  94.  See,  also,  Kriz  v.  Peege, 
119  Wis.  105,  95  N.  W.  108. 

3  Yale  V.  Dederer,  22  N.  Y.  450,  78  Am.  Dec.  21G;  Williams  v.  Hugunin, 
69  111.  214,  18  Am.  Rep.  607;  Grand  Island  Banking  Co.  v.  Wright,  53  Neb. 
574,  74  N.  W.  82. 

4  Yale  V.  Dederer,  22  N.  Y.  450,  78  Am.  Dec.  216;  Grand  Island  Bank- 
ing Co.  V.  Wright,  53  Neb.  574,  74  N.  W.  82.  See,  also,  Ankeney  v.  Hannon, 
147  U.  S.  lis,  13  Sup.  Ct.  206,  37  L.  Ed.  105  where  it  was  held  that,  even 
if  the  contract  shows  an  intent  to  charge  the  wife's  separate  estate,  it 
will  not  bo  extended  to  cover  after-acquired  property.  To  the  same  effect, 
see  Sticken  v.  Schmidt,  G4  Ohio  St.  364,  60  N.  E.  501. 

6  Watts  V.  Gantt,  42  Neb.  8G9,  61  N.  W.  104;  Grand  Island  Banking  Co. 
V.  Wright,  53  Neb.  574,  74  N.  W.  82.  See,  also.  Just  v.  State  Savings  Bank, 
132  Mich.  GOO,  94  N.  W.  200;  Miller  v.  Sanders,  98  Ky.  535,  33  S.  W.  621. 
A  mortgage  is  not  necessary  to  set  apart  personal  property  for  the  hus- 
band's debt.  It  may  be  by  pledge  or  other  suitable  manner.  Wirgman  v. 
Miller,  98  Ky.  620,  33  S.  W.  937. 

8  Grand  Island  Banking  Co.  v.  Wright,  53  Neb.  574,  74  N.  W.  82. 


§§  81-83)      POWER  TO  CHARGE  STATUTORY  ESTATE  BY  CONTRACT.       163 

the  wife's  separate  estate  is  purely  a  legal  one  under  the  statute,  it  is 
held  in  most  states  that  equity  nevertheless  has  jurisdiction  to  charge 
the  legal  estate  under  such  circumstances  as  would  render  it  liable  if 
the  separate  estate  were  a  creation  of  equity/  "The  jurisdiction  of  a 
court  of  equity,"  it  has  been  said,  "over  the  subject  [separate  prop- 
erty] does  not  rest  upon  the  ground  that  the  estate  of  the  wife  is  an 
equitable  estate  merely,  but  upon  the  ground  that  it  is  her  separate 
estate,  which  is  equitably  subject  to  contracts  and  engagements  en- 
tered into  by  her  which  are  not  legally  binding  upon  her  personally, 
and  which  cannot  be  enforced  by  law."  ^  In  some  states  equitable  ju- 
risdiction over  legal  separate  property  is  denied.* 

Such  contracts  as  can  be  made  by  a  married  woman  under  express 
statutory  provision,  as  incident  to  her  separate  property,  and  such 
contracts  as  she  can  make,  as  necessary  to  the  separate  enjoyment  of 
her  property,  can  be  enforced  in  some  states  by  actions  at  law.  The 
court  says  in  Conway  v.  Smith  i"  that  it  could  not  be  assumed  that 
the  Legislature  intended  to  rely  on  equitable  aid  to  help  out  the  ob- 
jects of  the  statute,  and  that  it  necessarily  follows  that  the  contracts 
contemplated  by  the  statute  can  be  enforced  by  legal  remedies.  It 
was  held  in  that  case  that  an  action  at  law  would  lie  on  a  promissory 
note.  And  in  Cookson  v.  Toole  ^^  an  action  at  law  for  work  and  la- 
bor was  sustained,  the  court  holding  that  "the  implication  of  capacity 
to  contract  in  respect  to  her  separate  property,  arising  under  the  stat- 

7  3  Pom.  Eq.  Jur.  §  1099;  Yale  v.  Dederer,  18  N.  Y.  2C.5,  272,  72  Am.  Dec. 
503;  Ballin  v.  Dillaye,  37  N.  Y.  35;  Perkins  v.  Elliott,  23  N.  J.  Eq.  52G; 
Levi  V.  Earl,  30  Ohio  St.  147;  Phillips  v.  Graves,  20  Ohio  St.  371,  389,  5  Am. 
Rep.  675;  Cox's  Adm'r  v.  Wood,  20  Ind.  54;  Pond  v.  Carpenter,  12  Mimi. 
430  (Gil.  315);  Hall  v.  Dotson,  55  Tex.  520;  Wicks  v.  Mitchell,  9  Kan.  80; 
Todd  v.  Lee,  15  Wis.  3G5;  Donovan's  Appeal,  41  Conn.  551;  Johnson  v. 
Cummins,  16  N.  J.  Eq.  97,  105,  84  Am.  Dec.  142. 

8  Johnson  v.  Cummins,  16  N.  J.  Eq.  97,  84  Am.  Dec.  142.  See,  also,  Car- 
penter V.  Mitchell,  50  111.  470. 

9  West  V.  Lara  way,  28  Mich.  464;  Cain  v.  Bunkley,  35  Miss.  119,  145; 
Maclay  v.  Love,  25  Cal.  367,  85  Am.  Dec.  133.  Compare  Vail  v.  Meyer,  71 
Ind.  159. 

10  13  Wis.  125;  Krouskop  v.  Shontz,  51  Wis.  204,  8  N.  W.  241,  37  Am. 
Rep.  817.  But  see  Merrell  v.  Purdy,  129  Wis.  331,  109  N.  W.  82,  holding  that 
a  married  woman  may,  by  proper  Instrument,  charge  her  separate  prop- 
erty for  any  obligation,  even  for  her  husband's  debt,  but  the  charge  is 
only  enforceable  In  equity. 

1159  111.  515.  See,  also,  Williams  v.  Huffimin,  69  111.  214,  IS  Am.  Rep. 
607;   Todd  v.  Lee,  15  Wis.  365. 


164        wife's  equitable  and  statutory  separate  estate,    (Ch.  5 

ute,  is  an  implication  of  law,  and,  being  an  implication  of  law,  and  not 
of  eqviity,  the  capacity  to  contract  within  the  scope  of  the  implication 
is  necessarily  a  legal  capacity  and  all  contracts  under  it  must  be  legal 
contracts,  cognizable  by  courts  of  law."  In  the  leading  case  of  Yale 
V,  Dederer,^^  however,  under  a  similar  statute,  it  was  said  that  the 
statute  does  not  remove  the  legal  incapacity  which  prevents  a  married 
woman  from  contracting  debts.  When  married  women's  contracts  can 
be  enforced  at  law,  such  remedy  has  been  held  in  some  states  not  to 
be  exclusive,  but  cumulative,  and  that  equity  has  concurrent  juris- 
diction.^' 

12  18  N.  Y.  265,  72  Am.  Dec.  503. 

isPliillips  V.  Graves,  20  Ohio  St.  371,  5  Am.  Rep.  675;  Mitchell  v.  Otey, 
23  ISIiss.  236;  Johnson  y.  Cummins,  16  N.  J.  Eq.  97,  SI  Am.  Dec.  142;  1  Story, 
Eq.  Jur.  §  80. 


§    84)  ANTENUPTIAL  AND   POSTNUPTIAL  SETTLEMENTS.  165 

CHAPTER  VI. 
ANTENUPTIAL    AND    POSTNUPTIAL    SETTLEMENTS. 

84.  Antenuptial   Settlements. 

85.  Marriage  as  a  Consideration. 

86.  Reasonableness  of  Provision  for  Wife. 

87.  Settlements  Based  on  Antenuptial  Agreements. 

88.  Statute  of  Frauds. 
89-90.  Postnuptial  Settlements. 

91-92.  As  against  Creditors  and  Purchasers. 

ANTENUPTIAI.    SETTLEMENTS. 

84.  An  antenuptial  settlement  or  marriage  settlement  is  an  agree- 
ment entered  into  before  marriage,  and  in  consideration  there- 
of, betnreen  an  intended  husband  and  ivlfe,  or  bet^^een  them 
and  third  persons,  by  xirhich  the  enjoyment  or  devolution  of 
property  is  regulated.      A  marriage   settlement^ 

(a)  May   determine    the   rights   \<rhich   the   husband   and   xirife   shall 

have  in  his  or  her  own,  or  in  each  other's,  property. 

(b)  But,  as  a  rule,  it  cannot  otherwise  vary  the  rights  and  obliga- 

tions  of   husband   and   wife,  arising   from   the   marriage   rela- 
tion. 

The  term  "settlement"  is  ordinarily  applied  to  agreements  en- 
tered into  before  marriage,  and  in  contemplation  and  consideration 
thereof,  by  which  the  enjoyment  and  devolution  of  property  is  regu- 
lated.^ In  its  broadest  sense,  however,  the  term  applies  also  to 
settlements  or  agreements  made  after  marriage.  In  the  former  case 
they  are  called  "antenuptial  settlements,"  and  in  the  latter  case  they 
are  called  "postnuptial  settlements."  The  term  "marriage  settle- 
ment" is  often  applied  to  agreements  entered  into  after  marriage 
— that  is,  to  postnuptial  settlements;  but  this  use  of  the  term  is 
improper.  A  marriage  settlement  is  essentially  an  agreement  en- 
tered into  before  marriage,  and  in  consideration  thereof.  The  t«rm 
therefore  includes  antenuptial  settlements  only.  Marriage  settle- 
ments may  have  various  objects  in  view.  Ordinarily,  the  purpose 
is  to  alter  the  interests  which  the  husband  and  wife  would  have 
in  their  own  and  in  each  other's  property  by  the  law  of  the  mar- 

1  CJorker  v.  Corker,  87  Oal.  643,  25  Pac.  922. 


1G6  ANTENUPTIAL   AND   POSTNUPTIAL   SETTLEMENTS.  (Ch.  6 

riage  status,  and  to  fix  the  same  according  to  their  own  agreement; 
to  preserve  property  intact  in  a  particular  family,  or  the  issue  of 
the  contemplated  union;  or  to  prevent  the  dissipation  of  the  prop- 
erty of  either  party  by  extravagance.*  The  purpose  in  most  cases 
is  to  protect  the  wife  and  children  against  want  from  the  possible 
loss  or  dissipation  of  property  by  the  husband.  "These  marriage 
settlements  are  benignly  intended  to  secure  to  the  wife  a  certain 
support  in  any  event,  and  to  guard  her  against  being  overwhelm- 
ed by  the  misfortunes  or  unkindness  or  vices  of  her  husband. 
They  usually  proceed  from  the  prudence  or  foresight  of  friends, 
or  the  warm  and  anxious  affection  of  parents;  and,  if  fairly  made, 
they  ought  to  be  supported  according  to  the  true  intent  and  mean- 
ing of  the  instrument  by  which  they  are  created.  A  court  of  equi- 
ty will  carry  the  intention  of  these  settlements  into  eflfect,  and  not 
permit  the  intention  to  be  defeated."  ^ 

There  is  no  rule  of  law  nor  principle  of  public  policy  which  pre- 
vents husband  and  wife  from  thus  fixing,  by  an  agreement  before 
marriage,  the  rights  which  they  shall  have  in  each  other's  property, 
and  relinquishing  the  interests  which  they  would  otherwise  acquire 
therein  by  virtue  of  the  marriage.*  Thus,  they  may  relinquish 
their  distributive   shares  in  each  other's   estates,^   or  the  wife  may 


2  Crumlish  v.  Security  Tnast  &  Safe  Deposit  Co.,  8  Del.  Ch.  375,  68  Atl.  388. 

3  2  Kent,  Comm.  165 ;  Tabb  v.  Archer,  3  Hen.  &  M.  (Va.)  399,  3  Am.  Dee. 
G57;  McLeod  v.  Board,  30  Tex.  238,  94  Am.  Dec.  301;  Crostwaight  v.  Hutch- 
inson, 2  Bibb  (Ky.)  407,  5  Am.  Dec.  619.  Antenuptial  contracts  should  be 
liberally  construed  to  carry  into  effect  the  intention  of  the  parties,  without 
regard  to  the  strictly  technical  meaning  of  the  words  used.  Collins  v.  Bau- 
man,  125  Ky.  840,  102  S.  W.  815. 

4  2  Kent,  Comm.  163;  Campion  v.  Cotton,  17  Ves.  264;  Appleby  v.  Appleby, 
100  Minn.  408,  111  N.  W.  305.  10  L.  It.  A.  (N.  S.)  590,  117  Am.  St.  Rep.  709; 
Kroell  V.  Kroell,  219  111.  105,  76  N.  E.  03;  Rieger  v.  Schaible  (Neb.)  115 
N.  W.  560;  Andrews  v.  Jones,  10  Ala.  400;  Tabb  v.  Archer,  3  Hen.  &  M. 
(Va.)  398,  3  Am.  Dec.  657;  Boardman's  Appeal,  4^  Conn.  109;  Caulk  v.  Fox, 
13  Fla.  148 ;  Hanley  v.  Dnimm,  31  La.  Ann.  106;  Peck  v.  Peck,  12  R.  I.  485, 
34  Am.  Rep.  702;  McLeod  v.  Board,  30  Tex.  239,  244,  94  Am.  Dec.  301; 
Woods  V.  Richardson,  117  Mass.  276;  Baldwin  v.  Carter,  17  Conn.  201,  42  Am. 
Dec.  735.  See,  also,  In  re  Hope-Johnstone,  73  Law  J.  Oh.  321  [1904]  1  Ch. 
470,  90  Law  T.  253,  20  Times  Law  R.  282,  when,  however,  a  postnuptial  set- 
tlement was  involved. 

6  Glover  v.  Bates,  1  Atk.  439;  Tarbell  v.  Tarbell,  10  Allen  (Mass.)  278; 
Adams  v.  Dickson,  23  Ga.  406;  McLeod  v.  Board,  30  Tex.  238;  94  Am.  Dec. 
301;  Crostvvaigbt  v.  Hutchinson,  2  Bibb  (Ky.)  407,  5  Am.  Dec.  619.     An  ante- 


§    84)  ANTENUPTIAL    SETTLEMENTS.  167 

bar  her  dower,  or  the  husband  his  curtesy.'  The  husband  may 
agree  that  his  wife  may  retain  all  her  own  property  to  her  sole 
and  separate  use,  and  he  may  settle  his  own  property  on  her.''  The 
agreement  may  relate  to  after-acquired  property,*  and  the  devolution 
of  the  property  of  either  or  both  may  be  regulated.® 

Marriage  settlements  being  intended  primarily  to  guard  the  prop- 
erty interests  of  the  parties,  and  especially  to  protect  the  wife  against 
changes  in  her  husband's  fortune,  are  confined  in  their  subject-mat- 
ter to  rights  in  property,^"  and  so  far  as  property  rights  are  concern- 
ed the  law  does  not  regard  such  agreements  as  contrary  to  public 
policy.  As  a  rule,  however,  aside  from  the  interest  which  the  hus- 
band and  wife  shall  take  in  each  other's  property,  the  rights  and  ob- 
ligations arising  from  the  marriage  relation  cannot  be  varied  by 
agreement  between  husband  and  wife,^^  or  between  both  or  either 
of  them  and  third  persons.  A  husband,  for  instance,  by  merely 
agreeing  to  pay  his  wife  a  stipulated  allowance,  cannot  always  re- 
lieve himself  of  his  common-law  liability  to  pay  for  her  necessaries, 
if  the  allowance  is  insufficient.^^  Nor  can  an  arrangement  whereby 
a  married  woman  lives  apart  from  her  husband,  and  has  a  separate 
maintenance  secured  to  -her,  change  the  legal  character  of  her  re- 
nuptial  contract,  whereby  the  husband  agreed  to  accept  in  relinquishment 
of  his  rights  an  income  of  $10,000  annually  on  the  death  of  his  wife,  the  in- 
come to  cease  in  the  event  of  his  marriage,  cutting  off  the  homestead  rights 
of  the  husband  and  his  statutory  one-third  interest  in  his  wife's  property, 
is  not  prohibited  by  law,  and  is  valid.  Appleby  v.  Appleby,  100  Minn.  408, 
111  N.  W.  305,  10  L.  R.  A.  (N.  S.)  590,  117  Am.  St  Rep.  709. 

6  Charles  v.  Andrews,  9  ilod.  151 ;  Simpson  v.  Gutteridge,  1  Madd.  609 ; 
Williams  v.  Chitty,  3  Ves.  551;  Selleck  v.  Selleck,  8  Conn.  85;  Stilley  v. 
Folger,  14  Ohio,  610;  Jacobs  v.  Jacobs,  42  Iowa,  600;  Naill  v.  Maurer,  25 
Md.  532. 

7  Baldwin  v.  Carter,  17  Conn.  201,  42  Am.  Dec.  735. 

8  Dunlap  V.  Hill,  145  N.  C.  312,  59  S.  E.  112 ;  Borland  v.  Welch,  162  N.  Y. 
104,  56  N.  E.  556 ;  Cole  v.  American  Baptist  Home  Mission  Soc,  64  N.  H.  445, 
14  Atl.  73;  In  re  Reis,  73  Law  J.  K.  B.  929,  [1904]  2  K.  B.  769,  91  Law  T. 
592,  53  Wkly.  Rep.  122,  II  Manson,  229,  20  Times  Law  R.  547. 

»  Davies  v.  Davies,  1  Law  J.  Ch.  (N.  S.)  31 ;  Hunter  v.  Bryant,  2  Wheat. 
32,  4  L.  Ed.  177;  Camp  v.  Smith,  01  Ga.  449;  Jacobs  v.  Jacobs,  42  Iowa, 
600 ;  Bank  of  Greensboro  v.  Chambers,  30  Grat  (Va.)  202,  32  Am.  Rep.  601. 

10  Schouler,  Dom.  Rel.  (4th  Ed.)  §  171;  Isaacs  v.  Isaacs,  71  Neb.  537,  99 
N.  W.  268. 

11  Isaacs  V.  Isaacs,  71  Neb.  537,  99  N.  W.  268;  Christian  v.  Hanks,  22  Ga. 
125;  Obermayer  v.  Greenleaf,  42  Mo.  304. 

12  Nurse  v.  Craig,  2  Bos.  &  P.  (N.  R.)  148 ;  ante,  p.  134. 


108  ANTENUPTIAL   AND   POSTNUPTIAL   SETTLEMENTS,  (Ch.  6 

lations  to  her  husband,  so  as  to  enable  her  to  contract  and  be  sued 
as  a  feme  sole.^'  Nor  can  a  settlement  whereby  all  a  wife's  prop- 
erty is  conveyed  in  trust  for  her  separate  use/*  nor  an  express 
agreement  that  the  husband  shall  not  be  liable,^"  relieve  him  from 
his  common-law  liability  for  her  antenuptial  debts.  "  And  an  ante- 
nuptial agreement  by  which  a  husband  agreed  not  to  change  his 
domicile  has  been  held  void,  as  an  attempt  to  abridge  a  legal  right 
of  the  husband  incident  to  the  marriage  status.^' 


MARRIAGE  AS  A  CONSIDERATION. 

85.   Marriage  is  a  sufficient  consideration  to  support  an  antenuptial 
settlement 

(a)  In  favor  of 

(1)  The   husband    and    wife   and  their   issue,   or  the   issue    of  a 

former  marriage. 

(2)  Collateral  relatives,  -nrhere  it  is  clear  that  it  iras  intended 

to  provide  for   them. 

(3)  But  not  in  favor  of  mere  strangers. 

(b)  As  against 

(1)  The  settlor. 

(2)  The  settlor's  creditors,  in  favor  of  an  innocent  beneficiary, 

though  the  settlor  -wa-a  insolvent,  and  intended  to  defraud 
his   creditors. 

(3)  But  not  as  against  creditors  if  the  beneficiary  participated 

in  the  fraudulent  intent,  or  knexr  of  it. 

Nothing  is  better  settled  than  that  marriage  is  a  sufficient  con- 
sideration to  support  an  antenuptial  settlement  as  against  the  set- 
tlor.^''    It  has  been  said  by  Mr.  Justice  Story  to  be  a  consideration 


18  Marshall  v.  Rutton,  8  Term  R,  545;  Prentiss  v.  Paisley,  25  Fla.  927, 
7  South.  56,  7  L.  R.  A.  640. 

14  Powell  V.  Manson,  22  Grat.  (Va.)  177,  193. 

16  Harrison  v.  Trader,  27  Ark.  288;  ante,  p.  138. 

18  Hair  v.  Hair,  10  Rich.  Eq.  (S.  C.)  163;  Isaacs  v.  Isaacs,  71  Neb.  537, 
99  N.  W.  268 ;  ante,  p.  58. 

17  Vaizey,  Set  Prop.  70;  Unger  v.  Mellinger,  37  Ind,  App.  639,  77  N.  E.  814, 
117  Am.  St.  Rep.  348;  Pierce  v.  Vansell,  35  Ind.  App.  525,  74  N.  E.  554; 
Colbert  v.  Rings,  231  111.  404,  83  N.  E.  274;  Ex  parte  Marsh,  1  Atb.  158; 
Nairn  v.  Prowse,  6  Ves.  752;  Magniac  v.  Thompson,  7  Pet.  348,  8  L.  Ed.  70O; 
Kroell  V.  Kroell,  219  111.  105,  76  N.  E.  63;  Broadrick  v.  Broadrick,  25  Pa. 


§    85)  MARRIAGE   AS   A    CONSIDERATION.  169 

"of  the  highest  value,"  ^^  and  by  Chancellor  Kent  to  be  "the  high- 
est consideration  in  law."  ^'  In  a  Massachusetts  case  it  was  said 
that  an  obligatory  agreement  to  marry  is  an  equally  high  consid- 
eration, not  differing  substantially  from  the  consideration  of  mar- 
riage, and  sufficient  to  support  an  antenuptial  settlement,  though 
the  settlor's  death  prevented  the  marriage.^"  In  order  that  a  prom- 
ise to  marry,  not  followed  by  the  marriage  contemplated,  may  sup- 
port a  settlement,  the  settlement  must  have  been  made  in  consid- 
eration of  the  promise;  and  the  settlement  should  show  very  clear- 
ly that  such  was  the  intention  of  the  parties,  to  authorize  a  court 
to  hold  that  the  settlement  was  not  conditional  upon  a  marriage 
actually  taking  place.  It  has  been  held  that,  where  the  agreement 
to  marry  is  rescinded  by  the  parties,  there  is  an  entire  failure  of  con- 
sideration.*^ The  same  should  be  true  where  the  agreement  is  dis- 
charged by  the  death  of  one  of  the  parties. 

It  is  well  settled  that  the  marriage  will  support  a  settlement  in 
favor  of  the  husband  and  wife  and  their  issue,**  or  the  children 
of  a  former  marriage.*^     It  seems  equally  well  settled  that  it  will 

Super.  Ct.  225;  Nesmlth  v.  Piatt  (Iowa)  114  N.  W.  1053.  And  see  Appleby 
V.  Appleby,  100  Minn.  408,  111  N.  W.  305,  10  L.  R.  A.  (N.  S.)  590,  117  Am. 
St.  Rep.  709,  holding  that,  though  the  original  engagement  of  marriage  be 
absolute  and  entered  into  some  months  preceding  the  making  and  signing 
of  an  antenuptial  contract,  the  agreement  to  marry  remains  a  consideration 
for  that  contract,  and  suflicient  to  support  it. 

18  Magniac  v.  Thompson,  7  Pet.  348,  8  L.  Ed.  709. 

i»  Sterry  v.  Arden,  1  Johns.  Ch.  (N.  Y.)  271. 

2  0  Smith  V.  Allen,  5  Allen  (Mass.)  454,  81  Am.  Dec.  75a 

21  Essery  v.  Cowlard,  26  Ch.  Div.  191. 

22  1  Vaizey,  Set.  Prop.  141;  Schouler,  Husb.  &  W.  §  349;  Trevor  r.  Trevor, 
1  P.  Wms.  622;  Herring  v.  Wickham,  2!)  Grat.  (Va.)  628,  26  Am.  Rep.  405; 
Vason  V.  Bell,  53  Ga.  416;  Tabb  v.  Archer,  3  Hen.  &  M.  (Va.)  398,  3  Am. 
Dec.   657. 

2  3  Gale  V.  Gale,  6  Ch.  Div.  144;  Michael  v.  Morey,  26  Md.  239,  90  Am. 
Dec.  106;  Vason  v.  Bell,  53  Ga.  416.  In  Michael  v.  Morey,  supra,  it  was 
said:  "The  consideration  of  marriage  is  a  valuable  consideration,  and  not 
only  sustains  covenants  in  favor  of  the  wife  and  the  issue  of  the  marriage, 
but  also  covenants  for  settlements  in  favor  of  children  of  a  former  marriage, 
as  a  moral  consideration.  The  children  are  regarded  as  purchasers.  They 
may  enforce  the  obligations  of  the  contracting  parties,  notwithstanding  the 
nonperformance  of  mutual  stipulations  on  the  other  side,  unless  they  are 
conditional  and  dependent  covenants.  Although  the  defaulting  party  may 
not,  in  some  instances,  be  allowed  to  enforce  the  articles  specifically,  the 
children,  the  innocent  objects  of  parental  solicitude  and  care,  are  entitled  to 


170  ANTENUPTIAL  AND   POSTNUPTIAL  SETTLEMENTS.  (Ch.  6 

not  support  a  settlement  in  favor  of  entire  strangers.^*  Whether 
it  will  support  a  settlement  in  favor-  of  collateral  relatives  is  a 
question  upon  which  the  authorities  are  conflicting.  In  England, 
by  the  weight  of  authority,  the  general  rule  is  to  exclude  them.^^ 
But  there  are  cases  which  recognize  an  exception  to  the  general 
rule,  and  hold  that  a  settlement  will  be  supported  even  in  favor  of 
collateral  relatives  if  there  is  something  over  and  above  the  con- 
sideration flowing  from  the*  immediate  parties  to  the  settlement, 
from  which  it  can  be  inferred  that  the  collateral  relatives  were  in- 
tended to  be  provided  for,  and  that,  if  the  provision  in  their  behalf 
had  not  been  agreed  to,  the  superadded  consideration  would  not 
have  been  given. ^*  This  exception,  and  even  a  broader  one,  it 
seems,  has  been  recognized  by  the  Supreme  Court  of  the  United 
States,  in  Neves  v.  Scott, ^^  where  it  is  said,  after  reviewing  some 
of  the  English  cases:  "The  result  of  all  the  cases,  I  think,  will 
show  that  if,  from-  the  circumstances  under  which  the  marriage 
articles  were  entered  into  by  the  parties,  or  as  collected  from  the 
face  of  the  instrument  itself,  it  appears  to  have  been  intended  that 
the  collateral  relatives,  in  a  given  event,  should  take  the  estate, 
and  a  proper  limitation  to  that  effect  is  contained  in  them,  a  court 
of  equity  will  enforce  the  trust  for  their  benefit.  They  will  not 
be  regarded  as  volunteers  outside  of  the  deed,  but  as  coming  fairly 
within  the  influence  of  the  considerations  upon  which  it  is  found- 
ed. The  consideration  will  extend  through  all  the  limitations  for 
the  benefit  of  the  remotest  persons  provided  for  consistent  with 
law."  " 

all  the  benefit  of  the  uses  under  the  settlement,  notwithstanding  there  has 
been  a  failure  on  one  side.  These  reasons  include  as  well  the  issue  of  a 
former  as  a  subsequent  marriage.  There  can  be  no  equity  in  inflicting  upon 
the  only  child  of  a  former  marriage,  dependent  on  its  mother  for  support,  in 
whose  behalf  provision  was  made  in  rinticipation  of  a  second  marriage,  the 
penalty  of  forfeiture,  because  of  the  subsequent  misconduct  of  her  mother." 

2  4  Sutton  V.  Ohetwynd,  3  Mer.  249 ;  Merritt  v.  Scott,  6  Ga.  563,  50  Am.  Dec. 
365. 

25  1  Vaizey,  Set.  Prop.  76,  140. 

26  Vernon  v.  Vernon,  2  P.  Wms.  594 ;  Stephens  v.  Trueman,  1  Ves.  Sr.  73 ; 
Edwards  v.  Countess  of  Warwick,  2  P.  Wms.  171.  See  Neves  v.  Scott,  9 
How.  190,  13  L.  Ed.  102. 

2T9  How.  190,  13  L.  Ed.  102;  13  How.  268,  14  L.  Ed.  140. 

28  And  see  Tabb  v.  Archer,  3  Hen.  &  M.  (Va.)  398,  3  Am.  Dec.  657 ;  Hosford 
V.  Rowe,  41  Minn.  245,  42  N.  W.  1018;  Cole  V.  American  Baptist  Home  Mis- 
sion Soc,  64  N.  H.  445.  14  Atl.  73. 


§   85)  MARRIAGE   AS   A   CONSIDERATION.  171 

As  against  Creditors. 

The  statute  of  13  Eliz.  c.  5,  provides  that  all  conveyances  and  dis- 
positions of  property,  real  or  personal,  made  with  the  intent  to  de- 
lay, hinder,  or  defraud  creditors,  shall  be  void  as  against  them ;  and 
the  statute  of  27  Eliz.  c.  4,  declares  void  all  conveyances  of  real 
property  made  with  the  intent  of  defeating  subsequent  purchasers. 
These  statutes  are  merely  declaratory  of  the  common  law,-**  and 
have  been  thus  accepted  in  some  of  our  states,  while  in  others  they 
have  been  expressly  adopted  by  statute,  or  re-enacted.***  Both  of 
these  statutes  contain  provisos  that  nothing  therein  contained  shall 
defeat  any  estate  or  interest  made  on  good  consideration,  and  bo- 
na fide  to  any  person  not  having  at  the  time  notice  of  any  fraudulent 
purpose. 

Since  marriage  is  a  valuable  consideration,  antenuptial  settle- 
ments are  not  fraudulent  as  against  creditors  and  purchasers,  un- 
der these  statutes,  where  they  are  made  in  favor  of  innocent  parties. 
A  marriage  settlement,  even  of  all  of  the  settlor's  property,  in  favor 
of  the  husband  or  wife  and  their  issue,  will  always  be  supported 
as  against  creditors  of  the  settlor  or  purchasers,  if  the  beneficiaries 
are  innocent  of  any  fraud ;  and  it  can  make  no  difference  that  the 
settlor  was  insolvent,  or  his  intent  fraudulent,  if  the  beneficiaries 
are  innocent.^^  A  settlement  by  a  husband  in  favor  of  his  wife 
has  been  upheld  as  against  his  creditors  notwithstanding  false  re- 
citals that  the  property  was  the  wife's,  because  it  did  not  appear 
that  she  knew  that  his  circumstances  were  such  as  to  make  the 
settlement  a  fraud  on  any  one.*^  As  has  been  said  by  Mr.  Justice 
Story:    "Nothing  can  be  clearer,  both  upon  principle  and  author- 


29  4  Kent,  Comm.  462;  May,  Fraud.  Conv.  3;  Rickards  v.  Attorney  Gen- 
eral, 12  Clark  &  F.  30,  42 ;  Hamilton  v.  Kussell,  1  Craiieli,  300,  2  L.  Ed.  118. 

30  4  Kent,  Comm.  463;  May,  Fraud.  Conv.  2. 

81  Campion  v.  Cotton,  17  Ves.  272;  Maguiac  v.  Thompson,  7  Pet.  3G7,  S  L. 
Ed.  700;  Herring  v.  Wickham,  20  Grat.  (Va.)  628,  26  Am.  Rep.  405;  Sterry 
V.  Arden,  1  Johns.  Ch.  (N.  Y.)  261;  Smith  v.  Allen,  5  Allen  (Mass.)  454,  81 
Am.  Dec.  758;  Andrews  v.  Jones,  10  Ala.  400;  Jones'  Appeal,  62  Pa.  324; 
Buuuel  V.  Witherow,  20  lud.  123;  Prewit  v.  Wilson,  103  U.  S.  22,  26  L..  Ed. 
360;  Bridge  v.  Eggleston,  14  Mass.  245,  7  Am.  Dec.  200;  Nance  v.  Nance,  84 
Ala.  375,  4  South.  600,  5  Am.  St.  Rep.  378;  Bumgarduer  v.  Harris,  02  Va. 
188,  23  S.  E.  220 ;  Boggess  v.  Richards'  Adm'r,  30  W.  Va.  567,  20  S.  B.  500, 
26  L.  R.  A.  537,  45  Am.  St.  Rep.  038 ;  Hosmer  v.  Tiffany,  115  App.  Div.  303, 
100  N.  Y.  S.  707. 

8  2  Campion  v.  Cotton,  17  Ves.  272. 


172  ANTENUPTIAL   AND   POSTNUPTIAL   SETTLEMENTS.  (Ch.  <> 

ity,  than  the  doctrine  that  to  make  an  antenuptial  settlement  void, 
as  a  fraud  upon  creditors,  it  is  necessary  that  both  parties  should 
concur  in,  or  have  cognizance  of,  the  intended  fraud.  If  the  settlor 
alone  intend  a  fraud,  and  the  other  party  have  no  notice  of  it,  but 
is  innocent  of  it,  she  is  not,  and  cannot  be,  affected  by  it.  Mar- 
riage, in  contemplation  of  the  law,  is  not  only  a  valuable  consid- 
eration to  support  such  a  settlement,  but  is  a  consideration  of  the 
highest  value;  and,  from  motives  of  the  soundest  policy,  is  up- 
held with  a  steady  resolution.  The  husband  and  wife,  parties  to 
such  a  contract,  are  therefore  deemed,  in  the  highest  sense,  pur- 
chasers for  a  valuable  consideration ;  and  so  that  it  is  bona  fide, 
and  without  notice  of  fraud  brought  home  to  both  sides,  it  be- 
comes unimpeachable  by  creditors."  *'  It  can  make  no  difference, 
in  so  far  as  the  validity  of  an  antenuptial  settlement  by  a  husband 
on  his  wife  and  children  is  concerned,  that,  before  the  settlement 
and  marriage,  he  lived  with  the  woman  in  fornication.^* 

If  in  any  case,  on  the  other  hand,  there  is  an  intent  both  on  the 
part  of  the  settlor  and  of  the  beneficiary  to  delay  and  defraud 
creditors,  or  if  there  is  such  an  intent  on  the  part  of  the  settlor, 
and  the  beneficiary  knows  of  it,  the  settlement  will  not  be  upheld.^ ^ 
"Fraud  may  be  imputable  to  the  parties  either  by  direct  co-opera- 
tion in  the  original  design  at  the  time  of  its  concoction,  or  by 
constructive  co-operation  from  notice  of  it,  and  carrying  the  design, 
after  such  notice,  into  execution."  ^*  Of  course  an  antenuptial 
agreement  that  the  wife's  property  shall  remain  hers  is  not  defeated 
by  the  fact  that  the  object  of  the  agreement  is  to  defeat  the  hus- 
band's creditors.*^ 

33  Magniac  v.  Thompson,  7  Pet.  348,  393,  8  L.  Ed.  709. 

8  4  Coutts  V.  Greenhow,  2  Munf.  (Va.)  363,  5  Am.  Dec.  472,  reversing  Green- 
how  V.  Ck)utts,  4  Hen.  &  M.  (Va.)  485.  And  see  Herring  v.  Wiekham,  29  Grat. 
(Va.)  628,  26  Am.  Rep.  405. 

3  5  Magniac  v.  Thompson,  7  Pet.  348,  8  L.  Ed.  709;  Davidson  v.  Graves, 
Riley,  Eq.  (S.  C.)  232;  Ck)lombine  v.  Penhall,  1  Smale  &  Glff.  228,  257;  Bul- 
mer  v.  Hunter,  L.  R.  8  Eq.  46. 

3  6  Per  Story,  J.,  in  Magniac  v.  Thompson,  7  Pet.,  at  page  394,  8  L.  Ed.  709. 

»7  Baldwin  t.  Carter,  17  Conn.  201,  42  Am.  Dec  735. 


86)  REASONABLENESS   OF   PROVISION    FOR   WIFE.  173 


REASONABLENESS    OF   PROVISION   FOR   >VIFE. 

86.  An  antenuptial  asreement  by  which,  the  wife  releases  her  rights 
in  the  husband's  property  must  be  accompanied  by  the  utmost 
good  faith  and  free  from  fraud  on  the  part  of  the  husband, 
and  the  provision  for  the  ■wife  must  be  reasonably  proportion- 
ate to  the  means  of  the  husband. 

As  antenuptial  settlements  are  intended  primarily  to  protect  the 
wife  and  children  against  want  from  the  possible  loss  or  dissipation 
of  the  property  of  the  husband,  it  is  essential  that  the  agreement  by 
which  the  wife  releases  her  rights  in  the  husband's  property  in  con- 
sideration of  a  provision  for  her  benefit  should  be  characterized  by 
the  utmost  good  faith,^^  free  from  fraud  on  the  part  of  the  hus- 
band,^' and  the  provision  for  the  wife  should  be  reasonably  propor- 
tionate to  the  means  of  the  husband.*°  If  these  essentials  are  lack- 
ing, the  settlement  may  be  set  aside  in  equity.*^ 

The  parties  to  an  antenuptial  contract  do  not  deal  at  arm's 
length,*-    but   they   occupy   a   confidential    relation   to    each    other,*' 

38  In  re  Kline's  Estate.  64  Pa.  122;  Achilles  v.  Acliilles,  137  111.  589,  28 
N.  E.  45;    Bierer's  Appeal,  92  Pa.  265. 

3  9  Murdock  v.  Murdock,  121  111.  App.  429;  Ellis  v.  Ellis,  1  Tenn.  Ch.  App. 
198;  Maze's  Ex'rs  v.  Maze,  99  S.  W.  336,  30  Ky.  Law  Rep.  679;  Pierce  v 
Pierce,  71  N.  Y.  154,  27  Am.  Rep.  22. 

40  Murdock  v.  Murdock,  219  111.  123,  76  N.  B.  57 ;  Ellis  v.  Ellis,  1  Tenn. 
C3i.  App.  198;  Tieraan  v.  Binns,  92  Pa.  248;  Colbert  v.  Rings,  231  111.  404, 
83  N.  E.  274. 

*i  Kline  v.  Kline,  57  Pa.  120,  98  Am.  Dec.  206 ;  Pierce  v.  Pierce,  71  N.  Y. 
154,  27  Am.  Rep.  22;  Peaslee  v.  Peaslee,  147  Mass.  171,  17  N.  E.  50G ;  Con- 
nor V.  Stanley,  72  Cal.  556,  14  Pac.  306,  1  Am.  St.  Rep,  84;  Ellis  v.  Ellis,  1 
Tenn.  Ch.  App.  198.  In  the  absence  of  fraud,  it  is  not  ground  to  set  aside  a 
settlement  that  the  wife  was  not  fully  informed  as  to  her  legal  rights.  Rob- 
bins  V.  Robbins,  225  111.  333,  80  N.  E.  326,  9  L.  R.  A.  (N.  S.)  953.  A  settlement 
will  not  be  set  aside  on  the  ground  of  mistake  because  it  contained  no  pro- 
vision for  revocation.  Crumlish  v.  Security  Trust  &  Safe  Deposit  Co.,  8  Del. 
Ch.  375,  68  Atl.  388. 

4  2  Pierce  v.  Pierce,  71  N.  Y.  154,  27  Am.  Rep.  22;  Maze's  Ex'rs  v.  Maze, 
99  S.  W.  336,  30  Ky.  Law  Rep.  679 ;    Bierer's  Appeal,  92  Pa.  265. 

43  Achilles  v.  Achilles,  137  111.  589,  28  N.  E.  45;  Pierce  v.  Pierce,  71  N.  Y. 
154,  27  Am.  Rep.  22;  Spurlock  v.  Brown,  91  Tenn.  241,  18  S.  W.  868;  Tier- 
nan  V.  Binns,  92  Pa.  248;  Nesmith  v.  Piatt  (Iowa)  114  N.  W.  1053,  holding 
that  the  parties  to  an  antenuptial  agreement  do  not  occupy  any  such  relation 
of  trust  toward  each  other  as  to  call  for  affirmative  proof  of  the  fairness  of 
the  agreement  when  contested  by  the  wife  after  the  death  of  the  husband. 


174  ANTENUPTIAL   AND    POSTNUPTIAL   SETTLEMENTS.  (Ch.  6 

and  while  they  may  lawfully  contract  with  each  other,  when  there 
is  full  knowledge  of  all  that  may  materially  affect  the  contract,  yet 
if  the  provision  secured  for  the  intended  wife  is  disproportionate 
to  the  means  of  the  intended  husband,  it  raises  a  presumption  of 
fraud  or  concealment,  throwing  upon  those  claiming  in  the  hus- 
band's  right  the  burden   of  disproving  the   same.** 

In  determining  the  fairness  and  reasonableness  of  the  provision 
for  the  wife,  the  wealth  of  the  husband,  the  existing  means  of  the 
wife,  and  the  age  of  the  parties  may  be  considered.*" 

SETTLEMENTS  BASED  ON  ANTENUPTIAL  AGREEMENTS. 

87.  The  consideration  of  marriage  supports  a  settlement  made  after 
marriage,  if  in  pursuance  of  a,  valid  antenuptial  agreement 
in  compliance  iiritli  tlie  statute  of  frauds. 

A  settlement,  though  not  made  until  after  marriage,  is  supported 
by  the  consideration  of  marriage  as  fully  as  if  made  before  marriage, 
if  it  is  made  in  pursuance  of  a  valid  antenuptial  agreement.*®  Prior 
to  the  enactment  of  the  statute  of  frauds,  which,  as  will  presently 
be  seen,  requires  all  agreements  in  consideration  of  marriage  to 
be  in  writing,*^  it  was  held  that  a  settlement  made  after  marriage, 
in  pursuance  of  an  antenuptial  agreement,  was  valid,  though  the 
agreement  was  not  in  writing.*^  Since  the  enactment  of  the  stat- 
ute, however,  all  agreements  in  consideration  of  marriage  must  be 

44  Taylor  v.  Taylor,  144  111.  436,  33  N.  E.  532;  Murdock  v.  Murdock,  219 
111.  123,  76  N.  E.  57 ;  Achilles  v.  Achilles,  151  111.  136,  37  N.  E.  693 ;  Hossick 
V.  Hessick,  169  111.  4S6,  48  N.  E.  712;  Bierer's  Appeal,  92  Pa.  265;  Spurlock 
V.  BroAvn,  91  Tenn.  241,  IS  S.  W.  868 ;  McRae  v.  Battle,  69  N.  C.  98. 

45  Brooks  V.  Brooks'  Ex'rs,  58  S.  W.  459,  22  Ky.  Law  Rep.  555 ;  Neely's 
Appeal,  124  Pa.  406,  16  Atl.  883,  10  Am.  St.  Rep.  594;  Hosford  v.  Rowe,  41 
Miun.  245,  42  N.  W.  1018 ;   Nesmith  v.  Piatt  (Iowa)  114  N.  W.  1053. 

46  1  Vaizey,  Set.  Prop.  72;  Tawney  v.  Crowther,  3  Brown,  Ch.  318;  Coles 
V.  Trccothick,  9  Ves.  250 ;  Jason  v.  Jervis,  1  Vern.  284,  286 ;  Reade  v.  Living- 
ston, 3  Johns.  Ch.  (N.  Y.)  481,  8  Am.  Dec.  520 ;  Sir  Ralph  Bovy's  Case,  1  Vent. 
193;  Tabb  v.  Archer,  3  Hen.  &  M.  (Va.)  398,  3  Am.  Dec.  657;  Broadrick  v. 
Broadrlck,  25  Pa.  Super.  Ot  225 ;  Pierce  v.  Vansell,  85  Ind.  App.  525,  74  N. 
E.  554.  But  a  settlement  based  on  an  antenuptial  agreement  looking  to  a  pos- 
sible separation  is  not  based  on  a  good  consideration.  Sawyer  v.  Churchill, 
77  Vt.  273,  59  Atl.  1014,  107  Am.  St.  Rep.  762. 

47  Post,  p.  175. 

48  Griffin  v.  Stanhope,  Cro.  Jac.  454 ;    Sir  Ralph  Bovy's  Case,  1  Vent  193. 


§  88)  STATUTE    OF   FRAUDS.  175 

evidenced  by  writing  before  the  court  can  recognize  them  as  having 
any  effect;  and  it  follows  that  an  antenuptial  agreement  must  be 
in  writing,  in  order  that  a  settlement  made  in  pursuance  thereof 
after  marriage   may   be  upheld.*' 

STATUTE  OF  FRAUDS. 

88.  Under  tlie  statute  of  frauds,  an  agreement  in  consideration  of 
marriage  must  be  evidenced  by  ivriting,  or  it  cannot  be  prov- 
en or  recognized  by  the  courts. 

The  statute  of  frauds  and  perjuries  (St.  29  Car.  II,  c.  3,  §  17)  pro- 
vides that  "no  action  shall  be  brought  whereby  *  *  *  to  charge 
any  person  upon  any  agreement  made  upon  consideration  of  marriage, 
*  *  *  unless  the  agreement  upon  which  such  action  shall  be 
brought,  or  some  memorandum  or  note  thereof,  shall  be  in  writ- 
ing, and  signed  by  the  party  to  be  charged  therewith,  or  some  other 
person  thereunto  by  him  lawfully  authorized."  This  statute  has 
been  substantially  re-enacted  in  this  country. 

The  statute  applies  to  all  agreements  for  which  a  marriage  is 
the  consideration,  such  as  a  promise  to  pay  money,  or  to  make  a 
settlement  of  property  if  a  marriage  is  consummated,  and  so  in- 
cludes marriage  settlements  or  agreements  therefor.^"     The  statute, 

49  Montacute  v.  MaxT\'ell,  1  P.  Wms,  618,  1  Strange,  236 ;   Dundas  v.  Dutens, 
1  Ves.  Jr.  196;   Reade  v.  Livingstou,  3  Johns.  Ch.  (N.  Y.)  481,  8  Am.  Dec.  520 
Tawney  v.  Crowther,  3  Brown,   CTi.   2G3 ;    CJoles  v.  Trecothick,   9  Ves.  250 
Lloyd  V.  Fulton,  91  U.  S.  479,  23  L.  Ed.  3G3 ;   Bradley  v.  Saddler,  54  Ga.  681 
Finch  V.  Finch,  10  Ohio  St.  501 ;    Henry  v.  Henry,  27  Ohio  St.  121 ;    Flenner 
V.  Flenner,  29  Ind.  569;    Izard  v.  Middelton.  Bailey,  Eq.  (S.  C.)  228. 

BO  Clark,  Cont.  101,  102;  Tawney  v.  Crowther,  3  Brown,  Ch.  263;  Coles  v. 
Trecothick,  9  Ves.  250;  Caton  v.  Caton,  1  Ch.  App.  137;  Ogden  v.  Ogden,  1 
Bland  (Md.)  284;  Crane  v.  Gough,  4  Md.  316;  Reade  v.  Liviogston,  3  Johns. 
Ch.  (N.  Y.)  481,  8  Am.  Dec.  520;  Henry  v.  Henry,  27  Ohio  St.  121;  Finch  v. 
Finch,  10  Ohio  St.  507;  Flenner  v.  Flenner,  29  Ind.  564;  Caylor  v.  Roe,  99 
Ind.  1;  Lloyd  v.  Fulton,  91  U.  S.  479,  23  L.  Ed.  363;  Deshon  v.  Wood,  148 
Mass.  132,  19  N.  E.  1,  1  L.  R.  A.  518;  Chase  v.  Fitz.  132  Mass.  359;  McAunul- 
ty  V.  McAnnulty,  120  111.  26,  11  N.  E.  397,  60  Am.  Rep.  552 ;  Mallory's  Adm'rs 
V.  Mallory's  Adm'r,  92  Ky.  316,  17  S.  W.  737;  Hamion  v.  Houuihan,  85  Va. 
429, 12  S.  E.  157 ;  ante,  p.  165.  In  Larsen  v.  Johnson,  78  Wis.  300,  47  N.  W.  615, 
23  Am.  St.  Rep.  404,  it  was  held  that  the  statute  did  not  apply  to  an  oral 
agreement  between  a  man  and  woman,  by  which  the  man  was  to  provide  for 
the  comfort  and  support  of  the  woman  during  life,  pay  her  debts,  take  care 
of,  manage,  and  improve  certain  land,  so  as  to  make  it  productive,  and  to 
that  end  that  the  parties  should  marry  and  live  together  on  the  land,  which 


176  ANTENUPTIAL   AND    POSTNUPTIAL   SETTLEMENTS.  (Ch.  6 

therefore,  applies  to  an  agreement  by  a  man  and  woman  in  con- 
templation of  marriage  that  each  shall  retain  the  title  to  his  or 
her  own  property,  and  dispose  of  it  as  if  unmarried ;  "^^  or  that  the 
survivor  shall  take  no  interest  in  the  property  of  the  other;  ^^  or 
that  the  survivor  shall  take  certain  projperty.^' 

The  memorandum  required  by  the  statute  of  frauds  does  not  go 
to  the  existence  of  the  contract,  but  is  evidence  only.  A  parol 
agreement  within  the  statute  exists.  It  simply  cannot  be  proved, 
and  is  unenforceable.  For  this  reason,  it  is  held  that  the  note  or 
memorandum  in  writing  need  not  be  made  at  the  time  the,  contract 
is  made,  but  may  be  made  at  any  time  before  it  is  sought  to  en 
force  it.  This  applies  to  other  contracts  within  the  statute  o 
frauds ;  '^*  and  there  is  no  ground  upon  which  the  courts  are  au 
thorized  to  make  an  exception  in  the  case  of  agreements  in  con- 
sideration of  marriage.  It  has  therefore  been  held  that  a  verbal 
agreement  in  consideration  of  marriage  is  taken  out  of  the  opera- 
tion of  the  statute  by  being  reduced  to  writing  after  the  marriage. ^^ 
As  has  been  shown,  a  settlement  made  after  marriage,  in  pursuance 
of  a  valid  antenuptial  agreement,  is  supported  by  the  consideration 
of  marriage,  but  cannot  be  upheld  unless  there  is  written  evidence 
of  the  antenuptial  agreement,  since  the  agreement  cannot  be  proved 
by  parol.  Some  of  the  courts  have  intimated,  but  not  decided, 
that  it  is  not  sufficient  in  these  cases  for  the  written  evidence  of 
the  antenuptial  agreement  to  be  supplied  by  recitals  in  the  instru- 
ment by  which  the  settlement  in  pursuance  thereof  is  made  after 
marriage.^®  Under  the  principle  stated  above,  however,  such  a  re- 
cital may  be  sufficient.^^ 

should  be  conveyed  by  the  woman  to  the  man  in  fee  simple.  Tlie  court 
thought  that  the  consideration  for  the  conveyance  of  the  land  was  the  pro- 
vision for  the  support  and  comfort  of  the  woman  and  not  the  marriage.  The 
statute  does  not  apply  to  a  promise  to  marry,  the  consideration  for  which 
is,  not  the  marriage,  but  the  promise  of  the  other  party.  Clark  v.  Pendleton, 
20  Conn.  495;    Clark,  Cont  101. 

51  Mallory's  Adm'rs  v.  Mallory's  Adm'r,  92  Ky.  316,  17  S.  W.  737. 

6  2  Carpenter  v.  Comings,  51  Hun,  638,  4  N.  Y.  Supp.  947. 

5  3  Hannon  v.  Hounihan,  85  Va.  429,  12  S.  E.  157.  And  see  White  v.  Bige- 
low,  154  Mass.  593,  28  N.  E.  904 ;    Adams  v.  Adams,  17  Or.  247,  20  Pac.  633. 

54  Clark,  Cont.  116,  128,  and  cases  there  cited. 

6  5  McAnuulty  v.  McAnnulty,  120  111.  26,  11  N.  E.  397,  60  Am.  Rep.  552. 

6  6  Dictum  in  Randall  v.  Morgan,  12  Ves.  67,  and  in  Reade  v.  Livingston,  3 
Johns.  Ch.  (N.  Y.)  481,  8  Am.  Dec.  520. 

5  7  Dictum  in  Montacute  v.  Maxwell,  1  P.  Wms.  618,  1  Strange,  236,  and  in 
Dundas  v.  Dutens,  1  Ves.  Jr.  196. 


§§   89-90)  POSTNUPTIAL   SETTLEMENTS.  177 

The  note  or  memorandum  in  writing  required  by  the  statute  need 
not  be  a  formal  written  agreement.  Any  writing  which  shows  all 
the  terms  of  the  agreement,  the  subject-matter,  and  the  parties,  and 
which  is  signed  by  the  party  to  be  charged,  or  his  or  her  duly  au- 
thorized agent,  is  sufficient,  since  written  evidence  of  the  agreement 
is  all  that  is  required.  There  is  no  difference  in  this  respect  be- 
tween this  kind  of  an  agreement  and  any  other  agreement  within 
the  statute."^^  In  a  late  case,  a  letter  to  a  mother,  proposing  to  marry 
her  daughter,  shown  to  the  latter,  and  stating  that  the  writer  would 
convey  certain  land  to  the  daughter  when  they  should  be  married, 
was  held  a  sufficient  memorandum  of  the  agreement  to  convey.^' 
The  memorandum  may  consist  entirely  of  correspondence.  It  may 
consist  of  any  number  of  separate  papers,  provided  the  papers  re- 
fer to  and  identify  each  other.  The  most  informal  kind  of  a  mem- 
orandum will  suffice  if  it  shows  the  agreement  and  its  terms.*'' 

The  marriage  of  the  parties  is  not  such  part  performance  as 
will,  even  in  equity,  take  a  parol  antenuptial  agreement  out  of  the 
operation  of  the  statute.*^ 


POSTNUPTIAL    SETTLEMENTS. 

89.  At  common  laxr,  contracts,  gifts,  and  conveyances,  made  betv^een 

hnsband  and  ivife  directly  and  without  the  intervention  of 
trustees  or  third  persons,  are  void. 

90.  In  equity,  the  common-law  rule  does  not  apply  fully;    but 

(a)  Contracts   betT^een  husband   and  'wife  will   be   supported,  'where 

they  w^ould  be  good  at  la'w  if  made  with  trustees  for  the  'wife. 

(b)  Gifts  by  the  husband  to  the  'wife  are  good  as  betw^een  the  par- 

ties, 'where  there  is  an  irrevocable  gift  to  some  person  as  trus- 
tee for  the  'wife,  or  -where  the  husband  divests  himself  of  the 
property,   and   agrees   to   hold   as   trustee   for   the   ivife. 

(c)  Conveyances    by   the    husband    directly    to    the    wife   are    good   as 

bet-ween  the  parties,  when  a  just  and  reasonable  provision  for 
the  \7ife. 

"8  See  Clark,  Cont,  114-128,  where  the  sufficiency  of  the  memorandum  re- 
quired by  the  statute  is  discussed  at  length,  and  the  cases  on  the  subject  are 
collected. 

6  9  North  Platte  Milling  &  Elevator  Co.  v.  Price,  4  Wyo.  293,  33  Pac.  664. 

60  Hammersley  v.  De  Biel,  12  Clark  &  F.  45 ;    Clark,  Cont.  114. 

«i  Hannon  v.  Hounihan,  So  Va.  429,  12  S.  E.  157;  Johnstone  v.  Mappin, 
60  Law  J.  Ch.  241;  Flenner  v.  Flenner,  29  lud.  564;  Manning  v.  Riley,  52 
N.  J.  Eq.  39,  27  Atl.  810. 

TIFF.P.&  D.Rel.(2d  Ed.)— 32 


178  ANTENUPTIAL  AND   POSTNUPTIAL  SETTLEMENTS.  (Ch.  6 

Postnuptial  settlements  include  not  only  formal  settlements  made 
by  husband  or  wife  or  third  persons,  but  also  all  transfers  of  real 
or  personal  property  made  between  husband  and  wife. 

At  Common  Law. 

By  reason  of  the  common-law  idea  of  the  unity  of  husband  and 
wife,  they  cannot,  at  common  law,  enter  into  any  valid  contract  with 
each  other.® 2  Nor,  apparently  for  the  same  reason,  does  the  com- 
mon law  recognize  as  having  any  validity  whatever,  even  as  be- 
tween the  parties  themselves,  a  gift  of  personal  property,*^  or  a 
conveyance  of  real  property,®*  directly  between  husband  and  wife. 
Such  a  gift  or  conveyance  is  a  mere  nullity.  "If  any  principle  of 
common  law  is  settled  and  perfectly  at  rest,  it  seems  to  be  this : 
that  a  husband  cannot  convey  an  estate  by  deed  to  his  wife."  ^'^  It 
is  equally  well  settled  that  a  wife  cannot  at  common  law  make  a 
conveyance  directly  to  her  husband,  nor  can  they  effect  this  pur- 
pose by  joining  in  a  deed  to  him.°® 

Of  course,  even  at  common  law,  a  husband  can  make  a  valid 
contract  with  trustees,  or  a  valid  gift  of  personalty  or  conveyance 
of  real  property  to  trustees  for  the  benefit  of  his  wife,  provided  he 
does  not  commit  a  fraud  upon  his  creditors.  The  device  by  which 
a  husband  usually  conveyed  land  to  his  wife  at  common  law  was 
by  conveying  it  to  some  third  person,  and  having  him  convey  to 
the  wife.  Such  conveyances  are  valid.®^  By  a  similar  circuity, 
a  wife  could  convey  her  land  to  her  husband.  While  she  could 
not  convey  to  him  directly,  either  by  executing  the  conveyance  alone 
or  by  joining  with  him  in  a  conveyance,  they  could  accomplish  the 
purpose  by  joining  in  a  conveyance  to  a  third  person,  and  having 
the  grantee  reconvey  to  the  husband.®^  In  such  cases  the  wife 
must  have  acted  freely,  and  not  under  coercion  or  undue  influence 

6  2  Barron  v.  Barron,  24  Vt.  375. 

6  3  Co.  Litt.  3871);  Kitchen  v.  Bedford,  13  Wall.  413,  20  L.  Ed.  637;  Manny 
V.   Rixford,  44  111.   129. 

64  Co.  Litt.  lS7b,  3a,  112a;  Beard  v.  Beard,  3  Atk.  72;  Phillips  v.  Barnet, 
1  Q.  B.  Div.  440;  Voorhees  v.  Presbyterian  Church,  17  Barb.  (N.  Y.)  103; 
Martin  v.  Martin,  1  Me.  394;    Edgerly  v.  Whalan,  106  Mass.  307. 

6  0  Martin  v.  Martin,  1  Me.  394. 

66  White  V.  Waser,  25  N.  Y.  328;  Winans  v.  Peebles,  32  N.  Y.  423;  Sims 
V.  Rickets,  35  Ind.  181,  9  Am.  Rep.  679;  Scarborough  v.  Watkins,  9  B.  Mon. 
(Ky.)  540,  50  Am.  Dec.  528. 

6  7  Scarborough  v.  Watkins,  9  B.  Mon.  (Ky.)  540,  50  Am.  Dec.  528. 

68  Scarborough  v.  Watkins,  9  B.  Mon.  (Ky.)  540,  50  Am.  Dec.  528. 


§§    89-90)  POSTNUPTIAL   SETTLE3IENTS.  179 

by  the  husband. ®®  There  is  no  presumption  of  undue  influence/" 
but  the  court  will  scrutinize  the  transaction  closely,  and,  if  any 
undue  influence  appears  to  have  been  exercised,  set  the  conveyances 
aside. 

In  Equity. 

The  rule  in  equity  does  not  follow  the  common  law.  In  some 
cases  a  court  of  equity  will  recognize  and  enforce  contracts  and 
conveyances  entered  into  directly  between  husband  and  wife,  with- 
out the  intervention  of  trustees.  The  general  rule,  as  laid  down 
by  the  Vermont  court,  is  that,  whenever  a  contract  would  be  good 
at  law  if  made  with  trustees  for  the  wife,  it  will  be  sustained  in 
equity,  though  made  without  the  intervention  of  trustees.^^  So,  in 
equity,  a  gift  or  conveyance  by  the  husband  directly  to  the  wife  will 
be  upheld,  in  certain  cases,  by  holding  the  husband  as  trustee  for  the 
wife.  Equity  will  uphold  a  clear,  irrevocable  gift  by  a  husband  to 
his  wife,  either  with  or  without  the  intervention  of  trustees  ;^^ 
but  the  gift  must  be  clear  and  complete.  It  is  not  sufficient  to 
show  an  intention  to  give,  but  the  intention  must  have  been  carried 
into  effect/' 

6  9  Jackson  v,  Stevens,  16  Johns.  (N.  Y.)  110;  Shepperson  v.  Shepperson, 
2  Grat.  (Va.)  501. 

7  0  Scarborough  v,  Watkins,  9  B.  Mon.  (Ky.)  540,  50  Am.  Dec.  528. 

71  Barron  v.  Barron,  24  Vt.  375.  And  see  2  Story,  Eq.  Jur.  §  1372;  2 
Kent,  Comm.  166 ;  Shepard  v.  Shepard,  7  Johns.  Ch.  (N.  Y.)  57,  11  Am.  Dec. 
396;  Slanning  v.  Style,  3  P.  Wms.  334;  Arundell  v.  Phipps,  10  Ves.  146; 
Wallingsford  v.  Allen,  10  Pet.  5S3,  9  L.  Ed.  542;  Sims  v.  Rickets,  35  Ind. 
181,  9  Am.  Rep,  679;  Livingston  v.  Livingston,  2  Johns.  Ch.  (N.  Y.)  537; 
Maraman's  Adm'r  v.  Maraman,  4  Mete.  (Ky.)  88;  Putnam  v.  Bicknell,  18 
Wis.  333;  Huber  v.  Ruber's  Adm'r,  10  Ohio,  371;  Simmons  v.  McElwain, 
26  Barb.  (N.  Y.)  419;  Wilder  v.  Brooks,  10  Minn.  50  (Gil.  32),  S8  Am.  Dec. 
49;  Stocket  v.  Holliday,  9  Md.  4S0;  Bowie  v.  Stouestreet,  6  Md.  418,  61  Am. 
Dec.  318. 

72  1  Lewin,  Trusts,  68;  2  Story,  Eq.  Jur.  §  1375;  Lucas  v.  Lucas,  1  Atk. 
270;  Hutchins  v.  Dixon,  11  Md.  29;  Wallingsford  v.  Allen,  10  Pet.  583,  9 
L.  Ed.  542;  McLean  v.  Longlauds,  5  Ves.  78;  Mews  v.  Mews,  15  Beav.  529; 
Deming  v.  Williams,  26  Conn.  226,  68  Am.  Dec.  386;  Dilts  v.  Stevenson,  17 
N.  J.  Eq.  407;    Grant  v.  Grant,  34  Law  J.  Ch.  641. 

7  3  Cotteen  v.  Missing,  1  Madd.  176;  Kekewich  v.  Manning,  1  De  Gex,  M. 
&  G.  188;  Jennings  v.  Davis,  31  Conn.  134;  George  v.  Spencer,  2  Md.  Ch. 
353.  In  Grant  v.  Gi-ant,  34  Law  J.  Ch.  641,  it  was  held  that  delivery  Is 
not  necessary,  for  possession  of  the  wife  is  that  of  her  husband,  and  that 
present  words  of  gift,  without  any  further  act,  are  sufficient  in  equity  to 
constitute  the  husband  trustee  for  the  wife.    But  in  Re  Breton's  Estate,  17 


ISO  ANTENUPTIAL  AND   POSTNUPTIAL  SETTLEMENTS.  (Cll.  6 

In  the  leading  case  of  Wallingsford  v.  Allen/*  a  husband  and  wife 
having  separated,  and  alimony  having  been  decreed  against  him, 
he  gave  her,  in  discharge  thereof,  certain  personal  property.  After 
her  death  he  claimed  the  same.  The  court  said,  in  rejecting  his 
claim:  "Every  feature  of  the  agreement  is  an  appeal  to  have  it 
tested  by  those  principles  of  equity  which  have  been  applied  to 
maintain  a  separate  interest  in  women,  acquired  from  their  hus- 
bands during  coverture,  whether  the  same  were  made  by  the  inter- 
vention of  trustees  or  not,  when  the  transfer  was  fairly  made,  upon 
a  meritorious  or  valuable  consideration.  Agreements  between  hus- 
band and  wife,  during  coverture,  for  the  transfer  from  him  of  prop- 
erty directly  to  the  latter,  are  undoubtedly  void  at  law.  Equity  ex- 
amines with  great  caution  before  it  will  confirm  them.  But  it  does 
sustain  them  when  a  clear  and  satisfactory  case  is  made  out  that 
the  property  is  to  be  applied  to  the  separate  use  of  the  wife.  Where 
the  consideration  for  the  transfer  is  a  separate  interest  of  the  wife, 
yielded  up  by  her  for  the  husband's  benefit,  or  of  their  family, 
or  which  has  been  appropriated  by  him  to  his  uses ;  where  the 
husband  is  in  a  situation  to  make  a  gift  of  property  to  the  wife, 
and  distinctly  separates  it  from  the  mass  of  his  property  for  her  use, 
— either  case  equity  will  sustain,  though  no  trustee  has  been  inter- 
terposed  to  hold  for  the  wife's  use." 

Conveyances  of  real  estate  from  the  husband  to  the  wife  directly, 
without  the  intervention  of  a  trustee,  though  void  at  law,  are  up- 
held in  equity,  as  between  the  parties,  where  they  are  a  just  and 
suitable  provision  for  the  wife.'"*  In  an  Indiana  case  it  was  said 
in  regard  to  conveyances  of  real  estate,  as  was  said  by  the  Su- 
preme Court  of  the  United  States''®  in  regard  to  gifts  of  person- 
alty,  that   "a.   direct  conveyance    from   a   husband   to   his   wife   will 

Ch.  Div.  416,  it  was  held  that  such  a  gift  could  not  be  supported;  that 
this  was  an  attempt  to  make  a  legal  transfer,  and  therefore,  under  the 
rule  of  Milroy  v.  Lord,  8  Jur.  (N.  S.)  809,  it  could  not  operate  as  a  declara- 
tion of  trust.     See,  also.  In  re  Pierce,  7  Biss.  42G,  Fed.  Cas.  No.  11,139. 

7  4  10  Pet.  583,  9  L.  Ed.  542. 

7  5  Sims  V,  Rickets,  35  Ind.  181,  9  Am.  Rep.  679;  Shepard  v.  Shepard,  7 
Johns.  Ch.  (N.  Y.)  57,  11  Am.  Dec.  396;  Putnam  v.  Bicknell,  18  Wis.  333; 
Jones  V.  Clifton,  101  U.  S.  22.5,  25  L.  Ed.  908;  Crooks  v.  Crooks,  34  Ohio  St. 
610,  615;  Barron  v.  Barron,  24  Vt.  375;  Waterman  v.  Higgins,  28  Fla.  660, 
10  South.  97;  Huber  v.  Ruber's  Adm'r,  10  Ohio,  371;  Simmons  v.  McElwain, 
26  Barb.  (N.  Y.)  419;   Wilder  v.  Brooks,  10  Minn.  50  (Gil.  32),  88  Am.  Dec.  49. 

7  8  Wallingsford  v.  Allen,  10  Pet.  583,  9  L.  Ed.  542. 


g§    91-92)  POSTNUPTIAL    SETTLEMENTS.  181 

be  sustained  and  upheld  in  equity  in  either  of  the  following  cases, 
namely :  (1)  Where  the  consideration  of  the  transfer  is  a  separate 
interest  of  the  wife,  yielded  up  by  her  for  the  husband's  benefit  or 
that  of  her  family,  or  which  has  been  appropriated  by  him  to  his 
uses;  (2)  where  the  husband  is  in  a  situation  to  make  a  gift  to  his 
wife,  and  distinctly  separates  the  property  given  from  the  mass  of 
his  property,  and  sets  it  apart  to  the  separate  and  exclusive  use  of 
his  wife."  ''"'  Of  course,  if  the  transfer  of  personalty,  or  convey- 
ance of  realty,  directly  from  husband  to  wife,  is  supported  by  a 
valuable  consideration,  there  is  all  the  more  reason  for  sustaining 
it  in  equity.^* 

It  has  been  held  in  New  York  that  a  conveyance  directly  from  a 
wife  to  her  husband  is  not  only  void  in  law,  but  will  not  even  be  sus- 
tained in  equity.''" 

SAME— AS    AGAINST   CREDITORS   AND    PURCHASERS. 

01.  Postnuptial  voluntary  settlements,  or  gifts  and  conveyances  be- 
t^veen  husband  and  xrife,  xirbere  the  busband  is  indebted,  are 
held,  as  against  existing  creditors,  under  the  statute  of  13 
Eliz.  c.  5,  and  similar  statutes  in  this  country,  declaring  con- 
veyances of  real  estate  and  transfers  of  personal  property  void 
ivhen  made  xtrith  intent  to  defraud  creditors, 

(a)  Conclusively  fraudulent  and  void  in  some   states. 

(b)  Prima  facie  fraudulent  and  void  in  England  and  in  most  states. 
92.    Postnuptial    and    voluntary    conveyances    from    husband    to    -nrife, 

ivhere  the  husband  is  indebted,  are  held,  as  against  subse- 
quent purchasers,  under  the  statute  of  27  Eliz.  c.  4,  and  simi- 
lar statutes  in  this  country,  declaring  void  as  against  subse- 
quent purchasers  conveyances  made  Avith  the  intention  of  de- 
feating them, 

(a)  Conclusively  fraudulent  and  void  in  England. 

(b)  Prima  facie  fraudulent  and  void  in  this  country. 

While  gifts  and  conveyances  between  husband  and  wife  may  be 
perfectly  good  in  equity  as  between  the  parties  themselves,  they 
may  be  invalid  as  against  creditors  and  purchasers.  Postnuptial 
settlements,   or   gifts   and   conveyances   between   husband   and    wife, 

7T  Sims  V.  Rickets,  35  lud.  181,  9  Am.  Rep.  679. 
7  8  Wallingsford  v.  Allen,  10  Pet.  583,  9  L.  Ed.  542. 

7  8  Wliite  V.  Wager,  25  N.  Y.  328;  Winans  v.  Peebles,  32  N.  Y.  423.  But 
see  Sims  v.  Rickets,  35  Ind.  181,  9  Am.  Rep.  679. 


182  ANTENUPTIAL  AND   POSTNUPTIAL  SETTLEMENTS.  (Ch.  6 

differ  from  antenuptial  settlements  in  the  matter  of  consideration. 
Antenuptial  settlements  are  supported  by  the  consideration  of  mar- 
riage, but  postnuptial  settlements  are  not,  for  the  marriage  is  past.®" 
The  consideration  of  marriage  supports  an  antenuptial  settlement 
as  against  creditors  and  purchasers;  but,  as  it  is  wanting  in  a 
postnuptial  settlement,  such  a  settlement,  unless  it  is  supported  by 
some  other  valuable  consideration,  may  be  attacked  as  voluntary 
and  fraudulent,  under  the  statutes  of  13  and  27  Eliz.  and  similar 
statutes  enacted  in  this  country.^^  As  we  have  seen,^^  the  stat- 
ute of  13  Eliz.  c.  5,  declares  all  conveyances  and  dispositions  of 
property,  real  or  personal,  made  with  intent  to  defraud  creditors, 
to  be  null  and  void  as  against  them;  and  the  statute  of  27  Eliz. 
c.  4,  declares  void,  as  against  subsequent  purchasers  of  the  same 
lands,  tenements,  or  other  hereditaments,  all  conveyances,  etc., 
made  with  the  intention  of  defeating  them,  or  containing  a  pow- 
er of  revocation.  Both  of  these  statutes  contain  provisos  that  noth- 
ing therein  contained  shall  defeat  any  estate  or  interest,  made  on 
good  consideration  and  bona  fide,  to  any  person  not  having  at  the 
time  notice  of  any  fraudulent  purpose.  A  voluntary  settlement  on 
his  wife,  after  marriage,  by  one  who  is  indebted,  has  been  held 
in  some  of  the  states  to  be  conclusively  fraudulent  as  against  ex- 
isting creditors,  regardless  of  the  extent  of  the  indebtedness  or 
the  amount  of  the  settlement  or  the  circumstances  of  the  debtor.^^ 
This  rule  found  support  in  the  earlier  English  cases,  where  it  was 
said  that  all  voluntary  conveyances  were  fraudulent,  excepting 
"where  the  person  making  them  is  not  indebted  at  the  time.  '  ^* 
In  the  later  English  cases,  however,  it  is  held  that  not  every  in- 
debtedness  will   render  a  voluntary  conveyance   fraudulent;^"     that 


sounger  v.  Mellinger,  37  Ind.  App.  639,  77  N.  E.  814,  117  Am.  St.  Rep. 
348;  Beverlin  v.  Castro,  62  W.  Va.  158,  57  S.  E.  411;  Lloyd  v.  Fulton,  91 
U.  S.  479,  23  L.  Ed.  3G3;    Clow  v.  Brown,  37  Ind.  App.  172,  72  N.  E.  534. 

81  Clow  V.  Brown,  37  Ind.  App.  172,  72  N.  E.  534.  But  an  existing  mar- 
riage relation  is  a  valuable  and  sufficient  consideration  to  support  a  con- 
veyance or  settlement  by  a  husband  on  his  wife,  if  it  does  not  affect  the 
claims  of  creditors  existing  at  the  time  of  the  said  conveyance  or  settle- 
ment.    Indiana  Match  Co.  v.  Kirk,  118  111.  App.  102. 

82  Ante,  p.  171. 

83  Reade  v.  Livingston,  3  Johns.  Ch.  (N.  Y.)  481,  8  Am.  Dec.  520;  Annin 
V.  Annin,  24  N.  J.  Eq.  184,  191. 

84  Russel  V.  Hammond,  1  Atk.  13. 

85  Skarf  V.  Soulby,  1  Macn.  &  G.  374 


§§    91-92)  POSTNUPTIAL   SETTLEMENTS.  183 

being  indebted  is  only  one  circumstance  from  which  evidence  of 
the  intention  to  defraud  may  be  drawn ;»«  that,  if  a  person  owing 
debts  makes  a  settlement  which  subtracts  from  the  property  which 
is  the  proper  fund  for  the  payment  of  those  debts  an  amount 
without  which  the  debts  cannot  be  paid,  then  the  court  may  infer 
that  the  settlor  intended  to  delay  his  creditors."  The  prevailing 
doctrine  in  this  country  is  in  accord  with  the  later  English  cases, 
namely,  that  a  voluntary  postnuptial  settlement  is  only  prima  fa- 
cie fraudulent  as  against  existing  creditors,  and  that  this  presump- 
tion may  be  rebutted  by  showing  that  the  settlement  was  reason- 
able, and  not  disproportionate  to  the  husband's  means,  taking  in- 
to view  his  debts  and  situation,  and  that  there  was  no  intent,  ac- 
tual or  constructive,  to  defraud  creditors.^^  While,  in  England, 
a  voluntary  postnuptial  settlement  of  real  estate  is  held  conclusive- 
ly void  as  against  a  subsequent  purchaser,  even  where  he  has  notice 
of  the  prior  deed,*®  in  this  country  it  has  been  held  that  the  sub- 
sequent sale  is  only  presumptive  evidence  of  fraud.®"*  Postnuptial 
settlements  made  for  a  valuable  consideration,  Hke  antenuptial  set- 
tlements which  are  supported  by  the  consideration  of  marriage,  fall 
within  the  provisos  of  the  statutes  of  13  and  27  Eliz.,  which  except 
bona  fide  purchasers  for  value,  and  are  therefore  good  as  against 
both  creditors  and  subsequent  purchasers,  in  favor  of  a  wife  tak- 
ing innocently.®^ 

86  Richardson  v.  Smallwood,  Jac.  552. 

87  Freeman  v.  Pope,  5  Ch.  App.  538.  See  May,  Fraud.  Con  v.  35,  for  a 
full  discussion  of  Englishi  cases. 

88  Kehr  v.  Smith,  20  Wall.  31,  35,  22  L.  Ed.  313;  Leavitt  v.  Leavitt,  47 
N.  H.  329;  Woolston's  Appeal,  51  Pa.  452;  Reynolds  v.  Lansford,  16  Tex. 
287;    Wilson  v.  Buchanan,  7  Grat.  (Va.)  334,  338. 

89  Doe  V.  Manning,  9  East,  59 ;  Evelyn  v.  Templar,  2  Brown.  Ch.  148. 
80  4  Kent,  Comm.  4(>i;    Cathcart  v.  Robinson,  5  Pet.  280,  8  L.  Ed.  120. 

»i  Ante,  pp.  171,  182 ;  Macq.  Husb.  &  W.  279 ;  Magniac  v.  Thompson,  7 
Pet.  348,  8  L.  Ed.  709;  Simmons  v.  McElwain,  26  Barb.  (N.  Y.)  419;  BuUard 
V.  Briggs,  7  Pick.  (Mass.)  533,  19  Am.  Dec  292. 


181  SEPARATION  AND  DIVORCB.  (Ch.  7 

CHAPTER  VII. 

SEPARATION  AND  DIVORCH. 

93-95.  Agreements  of  Separation. 

96.  Divorce,  or  Judicial  Separation, 

97,  98.  Jurisdiction  to  Grant  Divorce. 

99-104.  Grounds  for  Divorce. 

99.  Adultery. 

100-102.  Cruelty. 

103.  Desertion. 

104.  Miscellaneous  Other  Grounds. 
105-109.  Defenses  in  Suits  for  Divorce. 

105.  Connivance. 

106.  Collusion. 
107,  108.  Condonation. 

109.  Recrimination. 

110.  Extraterritorial   Effect   of   Divorce. 

111.  Legislative  Divorce. 

AGREEMENTS   OF  SEPARATION. 

93.  Agreements    of   separation   betxreen   husband   and   wife   are  valid 

if  the  separation  has  actually  taken  place  at  the  time  of  the 
agreement,  or  immediately  follo^es  it;  but  it  is  otheri^se  if 
a  future  separation  is  contemplated. 

94.  The  agreement  to  live  separately  w^iU  not  be  enforced,  but  only 

the  provisions  for  maintenance,  and  other  collateral  engage- 
ments. 

95.  If  the    parties   live   together   again,   the   agreement  is   rescinded, 

and  the  parties  restored  to  their  full  marital  rights. 

At  one  time  the  courts  refused  to  countenance  any  agreement 
between  husband  and  wife  to  Hve  separately,  without  regard  to 
whether  the  agreement  contemplated  an  immediate  separation  or  a 
separation  in  the  future,  and  without  regard  to  the  cause  of  the 
separation.  All  agreements  for  a  separation  were  held  void  as 
against  public  policy,  because  in  derogation  of  the  marriage  relation. 
"This  court,"  once  said  Lord  Stowell,  "considers  a  private  separation 
as  an  illegal  contract,  implying  a  renunciation  of  stipulated  duties; 
a  dereliction  of  those  mutual  offices  which  the  parties  are  not  at 
liberty  to  desert;   an  assumption  of  a  false  character  in  both  parties, 


§§    93-95)  AGREEMEJsTS   OF   SEPARATION.  185 

contrary  to  the  real  status  personas,  and  to  the  obhgations  which 
both  of  them  have  contracted  in  the  sight  of  God  and  man,  to  Hve 
together  'till  death  do  them  part,'  and  on  which  the  solemnities  both 
of  civil  society  and  of  religion  have  stamped  a  binding  authority, 
from  which  the  parties  cannot  release  themselves  by  any  private  act 
of  their  own,  or  for  causes  which  the  law  itself  has  not  pronounced 
to  be  sufficient  and  sufficiently  proved."  ^ 

There  has,  however,  been  a  complete  change  in  the  law  in  this 
respect  in  England,  and  agreements  to  live  separately  are  sustained 
by  the  English  courts  to-day  even  to  the  extent  of  enforcing  specific 
performance  of  the  agreement  to  live  apart.  This  was  caused  by  a 
change  in  judicial  opinion  as  to  the  demands  of  public  policy.  As 
was  said  by  Jessel,  M.  R. :  "A  change  came  over  judicial  opinion  as 
to  public  policy.  Other  considerations  arose,  and  people  began  to 
think  that,  after  all,  it  might  be  better  and  more  beneficial  for  mar- 
ried people  to  avoid  in  many  cases  the  expense  and  scandal  of  suits 
of  divorce  by  settling  their  differences  quietly  by  the  aid  of  friends 
out  of  court,  although  the  consequences  might  be  that  they  would 
live  separately."  *  Since  a  married  woman  could,  in  a  suit  for  di- 
vorce, sue  or  defend  in  her  own  name,  it  was  held  that  she  could 
compromise  such  suit,  and  that,  since  she  could  compromise  a  suit 
for  divorce  already  instituted,  she  might  compromise  the  difference 
with  her  husband  before  the  commencement  of  litigation,  by  agree- 
ing to  live  separately,  on  certain  terms  providing  for  her  mainte- 
nance and  the  custody  of  her  children.* 

The  courts  in  this  country  have  taken  the  same  view.  It  may  be 
laid  down  as  a  general  rule  that  the  courts  will  enforce  covenants  or 
promises  in  agreements  of  separation  relating  to  the  maintenance 
of  the  wife  and  other  collateral  engagements,  provided  the  separa- 
tion has  actually  taken  place  at  the  time  of  the  agreement,  or  imme- 
diately follows  the  agreement.'*     But  an  agreement  having  in  view 

1  Mortimer  v.  Mortimer,  2  Hagg.  Const.  310. 

2  Besant  v.  Wood,  12  Ch.  Div.  605;'  Wilson  y.  Wilson,  1  H.  L.  Cas.  538; 
Hunt  V.  Hunt,  4  De  Gex,  F.  &  J.  233;  Marshall  v.  Marshall,  27  Wkly.  Rep. 
399 ;   Hart  v.  Hart,  18  Ch.  Div.  670. 

3  Besant  v.  Wood,  12  Ch.  Div.  605 ;  McGregor  v.  McGregor,  20  Q.  B.  Div. 
529. 

*  Clark,  Cont.  444 ;  Sumner  v.  Sumner,  121  Ga.  1,  48  S.  E.  727 ;  Hiett  v. 
Hiett,  74  Neb.  96,  103  N.  W.  1051;  Effray  v.  Effray,  110  App.  Div.  545,  97 
N.  Y.  Supp.  286;    Branch  v.  Branch's  Ex'r,  98  S.  W.  1004,  30  Ky.  Law  Rep. 


186  SEPARATION  AND  DIVORCE.  (Ch.  7 

a  separation  in  the  future  is  altogether  void,  as  against  public  policy, 
and  it  is  immaterial  whether  they  are  made  before  or  after  marriage, 
because  they  give  inducements  to  the  parties  not  to  perform  "duties 
in  the  fulfillment  of  which  society  has  an  interest."  "  "The  distinc- 
tion," it  has  been  said,  "rests  upon  the  following  ground :  An  agree- 
ment for  an  immediate  separation  is  made  to  meet  a  state  of  things 
which,  however  undesirable  in  itself,  has  in  fact  become  inevitable. 
Still,  that  state  of  things  is  abnormal,  and  not  to  be  contemplated  be- 
forehand. 'It  is  forbidden  to  provide  for  the  possible  dissolution  of 
the  marriage  contract,  which  the  policy  of  the  law  is  to  preserve  in- 
tact and  inviolate.*  Or,  in  other  words,  to  allow  validity  to  provisions 
for  a  future  separation  would  be  to  allow  the  parties,  in  effect,  to 
make  the  contract  of  marriage  determinable  on  conditions  fixed  be- 
forehand by  themselves."  " 

It  must  be  noted  that,  where  the  law  does  enforce  an  agreement 
of  separation,  it  does  so  only  as  to  the  provision  as  to  maintenance 
and  other  collateral  engagements.  The  courts  of  this  country,  at 
least,  will  not  aid  in  carrying  out  such  an  agreement,  in  so  far  as  it 

417;  Carson  v.  Murray,  3  Paige  (N.  Y.)  483;  Champlin  v.  Champlin,  Hoff.  Ch. 
(N.  Y.)  55 ;  Calkins  v.  Long,  22  Barb.  (N.  Y.)  97 ;  Pettit  v.  Pettit,  107  N.  Y. 
G77,  14  N.  E.  500 ;  Clark  v.  Fosdick,  118  N.  Y.  7,  22  N.  E.  1111,  6  L.  R.  A.  132. 
16  Am.  St.  Rep.  733;  Hutton  v.  Button's  Adm'r,  3  Pa.  100;  Hitner's  Appeal, 
54  Pa.  110;  Appeal  of  Agnew  (Pa.)  12  Atl.  160;  Com.  v.  Richards,  131  Pa. 
209,  18  Atl.  1007;  Button  v.  Button,  30  Ind.  452;  Page  v.  Trufant,  2  Mass. 
159,  3  Am.  Dec.  41 ;  Fox  v.  Davis,  113  Mass.  255,  18  Am.  Rep.  476 ;  Randall 
V.  Randall,  37  Mich.  563;  Barnes  v.  Barnes,  104  N.  C.  613,  10  S.  E.  304; 
Rains  v.  Wheeler,  76  Tex.  390,  13  S.  W.  324 ;  Carey  v.  Mackey,  82  Me.  516, 
20  Atl.  84,  9  L.  R.  A.  113,  17  Am.  St.  Rep.  500 ;  Garver  v.  Miller,  16  Ohio  St 
527;  Bettle  v.  Wilson,  14  Ohio,  257;  Thomas  v.  Brown,  10  Ohio  St.  247; 
Loud  V.  Loud,  4  Bush  (Ky.)  453 ;  Gaines'  Adm'x  v.  Poor,  3  Mete.  (Ky.)  503,  79 
Am.  Dec.  559 ;  Wells  v.  Stout,  9  Cal.  479 ;  McCubbin  v.  Patterson,  16  Md.  179 ; 
Robertson  v.  Robertson,  25  Iowa,  350 ;  Walker  v.  Walker's  Ex'r,  9  Wall.  743, 
19  L.  Ed.  814;  Switzer  v.  Switzer,  26  Grat  (Va.)  574;  Harshberger's  Adm'r 
V.  Alger,  31  Grat.  (Va.)  52. 

0  Hunt  V.  Hunt,  4  De  Gex,  F.  &  J.  221.  And  see  Clark,  Cont  444,  and  cases 
there  cited;  Sumner  v.  Sumner,  121  Ga.  1,  48  S.  E.  727;  Hill  v.  Hill,  74  N. 
H.  288,  67  Atl.  406,  12  L.  R.  A.  (N.  S.)  848;  Sayles  v.  Sayles,  21  N.  H.  312, 
53  Am.  Dec.  208;  Adams  v.  Adams,  25  Minn.  72;  Stokes  v.  Anderson,  118 
Ind.  533,  21  N.  E.  331,  4  L.  R.  A.  313 ;  People  v.  Mercein,  8  Paige  (N.  Y.)  47, 
68;  Randall  v.  Randall,  37  Mich.  563;  Gaines'  Adm'x  v.  Poor,  3  Mete.  (Ky.) 
503,  79  Am.  Dec.  559;  Durant  v.  Titley,  7  Price,  577;  St  John  v.  St  John, 
11  Ves.  526 ;   Jee  v.  Thurlow,  2  Barn.  &  C.  547. 

«  Pol.  Cont  286. 


§   96)  DIVORCE    OR   JUDICIAL   SEPARATION.  187 

relates  solely  to  the  parties  living  apart.  As  was  said  in  a  Pennsyl- 
vania case:  "When  the  parties  have  effected  the  separation,  equity 
will  control  its  incidents,  and  accomplish  its  lawful  objects.  It  will 
compel  the  husband  to  pay  what  he  stipulated  to  pay  for  the  mainte- 
nance of  the  wife,  *  *  *  but  it  will  not  decree  a  separation."  ^ 
An  agreement  of  separation  will  be  considered  as  rescinded  if  the 
parties  afterwards  cohabit  or  live  together  as  husband  and  wife,  by 
mutual  consent,  for  ever  so  short  a  time.  And  in  such  an  event  all 
the  provisions  of  the  agreement  will  cease  to  operate,  and  the  parties 
will  be  restored  to  all  their  marital  rights  to  the  same  extent  as  if  no 
separation  had  ever  taken  place." 


DIVORCE  OB  JUDICIAL  SEPARATION. 

96.   Divorce  is  the  legal  separation  of  hnsband  and  ivif  e  by  tHe  judg- 
ment of  a  conrt.      There  are  tttro  kinds; 

(a)  It  may   dissolve   the  marriage,  in  xirhich  case  it  is  called  a  di- 

vorce "a  vinculo  matrimonii." 

(b)  It   may   suspend   the   effect   of   the   marriage   only  in   so   far   as 

cohabitation  is  concerned,  in  -which  case  it  is  called  a  divorce 
*'a  mensa  et  thoro." 

In  England  the  term  "divorce"  is  now  applied  both  to  decrees  of 
nullity  of  marriage  and  decrees  of  dissolution.  But  in  this  country 
the  term  is  limited  to  decrees  dissolving  or  suspending  the  effect  of 
a  valid  marriage.  Divorce  means  "the  legal  separation  of  man  and 
wife,  effected,  for  cause,  by  the  judgment  of  a  court,  and  either  total- 
ly dissolving  the  marriage  relation,  or  suspending  its  effects  so  far 
as  concerns  the  cohabitation  of  the  parties."  *  When  the  divorce  is 
a  total  dissolution  of  the  marriage  relation,  it  is  called  a  divorce  "from 
the  bond  of  marriage,"  or,  in  the  Latin,  "a  vinculo  matrimonii."  Such 
a  divorce  dissolves  the  marriage  tie,  and  releases  the  parties  wholly 
from  their  matrimonial  obligations.     When  the  divorce  merely  sus- 

T  Smith  V.  Knowles,  2  Grant,  Cas.  (Pa.)  413.  And  see  Adams  v,  Adams,  32 
Pa.  Super.  Gt.  353;  McKennan  v.  Phillips,  6  Whart  (Pa.)  571,  37  Am.  Dec. 
438;  Randall  v.  Randall,  37  Mich.  563;  Collins  v.  Collins,  62  N.  C.  153,  93  Am. 
Dec.  606;  McCrocklin  v.  McCrocklin,  2  B.  Mon.  (Ky.)  370;  Tourney  v.  Sin- 
clair, 3  How.  (Miss.)  324 ;  Rogers  v.  Rogers,  4  Paige  (N.  Y.)  516,  27  Am.  Dec. 
84;   Aspinwall  v.  Aspinwall,  49  N.  J.  Eq.  302,  24  Atl.  926. 

8  See  Carson  v.  Murray,  3  Paige  (N.  Y.)  483. 

»  Black,  Law  Diet  tit.  "Divorce." 


188  SEPARATION  AND  DIVORCE.  (Ch.  7 

pends  the  effect  of  the  marriage  as  to  cohabitation,  it  is  called  a  di- 
vorce from  bed  and  board,  or,  in  the  Latin,  "a  mensa  et  thoro."  Such 
a  divorce  is  partial  or  qualified.  The  parties  are  separated  and  for- 
bidden to  live  or  cohabit  together  again,  but  the  marriage  itself  is 
not  affected. 


JURISDICTION   TO    GRANT  DIVORCE. 

97.  In   this    country   jurisdiction   to   entertain   a    suit   for    divorce   Is 

entirely  statutory;    but,   Mirlien   once   conferred,  it  is   exercised 
as  in  the  English  ecclesiastical  courts. 

98.  ELEMENTS  OF  JURISDICTION— Jurisdiction  of  proceedings  for 

a   divorce   is,   in   general,    determined    by   the    domicile    of   the 
parties. 

In  England  the  only  courts  which  had  any  jurisdiction  to  enter- 
tain applications  for  divorce  were  the  ecclesiastical  courts,  and  they 
only  granted  divorces  a  mensa  et  thoro.  Courts  of  common  law  and 
courts  of  chancery  had  no  jurisdiction  at  all  in  this  respect.^**  In 
this  country  there  is  no  tribunal  having  the  jurisdiction  of  the  eccle- 
siastical courts.  Our  courts  have  jurisdiction  to  entertain  and  grant 
suits  for  divorce  only  where  such  jurisdiction  has  been  expressly  con- 
ferred upon  them  by  statute. ^^ 

Where  such  jurisdiction  has  been  conferred  by  statute,  as  is  the 
case  in  most  of  the  states,  it  is  exercised  in  accordance  with  the  law 
as  administered  in  the  ecclesiastical  courts,  except  in  so  far  as  that 
law  has  been  modified  by  statute.^* 

Jurisdiction  Dependent  on  Domicile. 

It  is  a  general  rule  that  the  jurisdiction  of  proceedings  for  a  di- 
vorce depends  on  the  domicile  of  the  parties,  irrespective  of  the  place 

10  Since  the  Judicature  Act  of  1873  divorce  causes  are  heard  in  the  Probate, 
Divorce,  and  Admiralty  Division  of  the  High  Court  of  Justice. 

iiBurtis  V.  Burtis,  Hopk.  Ch.  (N.  Y.)  557,  14  Am.  Dec.  563;  Anon.,  24  N. 
J.  Eq.  19 ;  Cizeli  v.  Cizeli,  76  Neb.  797,  107  N.  W.  1012 ;  Rumping  v.  Rumping, 
36  Mont  39,  91  Pac.  1057,  12  L.  R.  A.  (N.  S.)  1197. 

12  Crump  V.  Morgan,  38  N.  C.  91,  98,  40  Am.  Dec.  447;  Le  Barron  v.  Le 
Barron,  35  Vt.  3G5;  Wuest  v.  Wucst,  17  Nev.  217,  30  Pac.  SS6;  Williamson  v. 
Williamson,  1  Johns.  Ch.  (N.  Y.)  488,  491 ;  Barrere  v.  Barrere,  4  Johns.  Ch. 
(N.  Y.)  187,  196;  Wood  v.  Wood,  2  Paige  (N.  Y.)  108;  Devanbagh  v.  Devan- 
bagh,  5  Paige  (N.  Y.)  554,  28  Am.  Dec.  443;  Burr  v.  Burr,  10  Paige  (N.  Y.) 
20;   Griinn  v.  Griffin,  47  N.  Y.  137. 


§§   97-98)  JURISDICTION   TO   GRANT  DIVORCE.  189 

of  marriage,  and  without  reference  to  the  place  where  the  offense  for 
which  the  divorce  is  sought  was  committed.^'  To  give  the  court  ju- 
risdiction at  least  one  of  the  parties  must  be  domiciled  in  the  state  or 
territory  where  the  action  is  brought/*  and  if  neither  party  is  domicil- 
ed in  the  state  the  court  has  in  fact  no  jurisdiction.^' 

Of  course,  if  both  parties  have  their  domicile  in  the  state  where  the 
action  is  brought,  the  jurisdiction  of  the  courts  of  that  state  is  complete 
as  to  both  the  subject-matter  and  the  parties.^'  As  has  been  pointed 
out  elsewhere,  the  domicile  of  the  wife  is  generally  the  same  as  that 
of  the  husband;  ^^  consequently,  if  the  wife  is  separated  from  the  hus- 
band unjustifiably,  her  domicile  is  still  the  same  as  his,  and  the  court, 
in  an  action  for  divorce  brought  by  the  husband  in  the  state  of  his 
domicile,  has  jurisdiction  of  both  parties.^' 

But  it  is  well  settled  that,  for  the  purpose  of  divorce,  an  injured 
and  innocent  wife  may  acquire  a  domicile  separate  from  that  of  the 
husband;^®  and,  on  the  other  hand,  the  husband  cannot  by  his  own 

13  Harteau  v.  Harteau,  31  Mass.  (14  Pick.)  181,  25  Am.  Dec.  372;  Ditsou  v. 
Ditson,  4  R.  I.  87. 

14  Van  Fossen  v.  State,  37  Ohio  St.  317,  41  Am.  Rep.  507;  Watkins  v.  Wat- 
kins,  125  Ind.  163,  25  N.  B.  175,  21  Am.  St.  Rep.  217. 

15  House  V.  House,  25  Ga.  473;  State  v.  Armington,  25  Minn.  29;  Ditson 
V.  Ditson,  4  R.  I.  87.  It  has,  however,  been  held  In  some  cases  that.  If  the 
parties  voluntarily  submitted  themselves  to  the  jurisdiction,  they  (but  not 
third  persons)  are  thereafter  estopped  to  deny  the  court's  jurisdiction.  In  re 
Ellis'  Estate,  55  Minn.  401,  56  N.  W.  1056,  23  L.  R.  A.  287,  43  Am.  St  Rep. 
514;  Kinnier  v.  Kinnier,  45  N.  Y.  535,  6  Am.  Rep.  132;  Starbuck  v.  Starbuck, 
173  N.  Y.  503,  66  N.  E.  193,  93  Am.  St.  Rep.  631. 

leMcGill  v.  Deming,  44  Ohio  St.  645,  11  N.  E.  118;  Cheely  v.  Clayton,  110 
U.  S.  701,  4  Sup.  Ct.  328,  28  L.  Ed.  298. 

17  Ante,  p.  58.  The  husband  may  not  by  his  own  acts  prevent  the  wife 
from  adopting  or  maintaining  his  domicile  as  hers.  Hence,  where  the  hus- 
band was  a  resident  of  the  state  for  more  than  a  year  before  the  commence- 
ment of  the  wife's  action  for  separation,  she  may  claim  his  residence  as  hers, 
giving  the  court  jurisdiction.  Ensign  v.  Ensign,  54  Misc.  Rep.  289,  291,  105 
N.  Y.  Supp.  917. 

18  Loker  v.  Gerald,  157  Mass.  42,  31  N.  E.  709,  16  L.  R.  A.  497,  34  Am.  St. 
Rep.  252 ;  Burlen  v.  Shannon,  115  Mass.  438 ;  Hood  v.  Hood,  110  Mass.  463 ; 
Hunt  v.  Hunt,  72  N.  Y.  217,  28  Am.  Rep.  129;  Matter  of  Morrison  (In  re 
Feyh's  Estate)  52  Hun,  102,  5  N.  Y.  Supp.  90;  Post  v.  Post,  55  Misc.  Rep. 
538,  105  N.  Y.  Supp.  910. 

i9Arrington  v.  Arrington,  102  N.  C.  491,  9  S.  E.  200;  Shaw  v.  Shaw,  98 
Mass.  158;  Smith  v.  Smith,  43  La.  Ann.  1140.  10  South.  248;  Cheever  v.  Wil- 
son, 76  U.  S.  (9  Wall.)  108,  19  L.  Ed.  604;   Harding  v.  Alden,  9  Me.  (9  Greenl.) 


190  SEPARATION  AND  DIVORCE.  (Ch.  7 

acts  prevent  the  wife  from  adopting  or  maintaining  the  same  domicile 
as  his  for  the  purposes  of  jurisdiction  of  divorce  proceedings.^"  So, 
too,  if  the  husband,  for  the  purpose  of  obtaining  a  divorce,  removes 
to  and  acquires  a  domicile  in  another  state,  the  domicile  of  the  inno- 
cent wife  will  not  necessarily  follow  his,  but  will  remain  in  the  state 
where  she  actually  resides.^ ^ 

This  phase  of  the  question  of  jurisdiction  has  been  well  illustrated 
by  two  cases  decided  by  the  Supreme  Court  of  the  United  States. 
In  Atherton  v.  Atherton  ^^  the  matrimonial  domicile  of  the  parties 
was  in  Kentucky.  The  wife  abandoned  the  domicile,  taking  up  her 
residence  in  New  York;  the  husband  remaining  in  Kentuclcy.  He 
obtained  a  divorce  there  on  the  ground  of  abandonment;  construc- 
tive service  being  made  on  the  wife  in  the  manner  prescribed  by  the 
law  of  Kentucky.  The  couft  held  that  the  domicile  of  the  parties, 
for  the  purposes  of  the  suit,  was  in  Kentucky,^'  and  that  the  Kentucky 
court  had  complete  jurisdiction.  In  Haddock  v.  Haddock  ^*  the  mat- 
rimonial domicile  of  the  parties  was  in  New  York.  The  husband 
abandoned  the  wife  and  subsequently  acquired  a  domicile  in  Con- 
necticut; the  wife  remaining  in  New  York.  The  husband  obtained 
a  divorce  in  Connecticut ;  constructive  service  being  made  on  the  wife 
as  prescribed  by  the  law  of  Connecticut.  The  court  held  that  the 
domicile  of  the  wife  did  not  in  such  case  follow  the  husband,^  ^  and, 


140,  23  Am.  Dec.  549;  Hanberry  v.  Hanberry,  29  Ala.  719;  Hibbert  y.  Hib- 
bert  (N.  J.  Ch.)  65  Atl.  1028;  Ransom  v.  Ransom,  54  Misc.  Rep.  410,  104 
N.  Y.  Supp.  198. 

20  Ensign  v.  Ensign,  54  Misc.  Rep.  289,  105  N.  T.  Supp.  917,  affirmed  in  120 
App.  Div.  882,  105  N.  Y.  Supp.  1114. 

2iVischer  v.  Vischer,  12  Barb.  (N.  Y.)  G40;  Heath  v.  Heath,  42  La.  Ann. 
437,  7  South.  540. 

2  2  181  U.  S.  155,  21  Sup.  Ot.  544,  45  L.  Ed.  794,  reversing  155  N.  Y.  129,  49 
N.  E.  933,  40  L.  R.  A.  291,  63  Am.  St.  Rep.  650. 

2  3  It  is  to  be  observed,  however,  that  according  to  the  views  of  Mr.  Justice 
Peckham,  who  dissented  from  the  decision  of  the  court,  the  wife  was  justified 
in  leaving  the  husband,  so  that  she  obtained  a  new  domicile  in  New  Yorli ; 
and  this  seems  also  to  be  the  view  talvcn  by  the  New  York  court.  Atherton 
V.  Atherton,  155  N.  Y.  129,  49  N.  E.  933,  40  L.  R.  A.  291,  63  Am.  St.  Rep.  6-50. 
In  this  connection  see,  also.  Post  v.  Post,  55  Misc.  Rep.  538,  105  N.  Y.  Supp. 
910;   Matter  of  Morrison  (In  re  Feyh's  Estate)  52  Hun,  102,  5  N.  Y.  Supp.  90. 

24  201  U.  S.  5G2,  26  Sup.  Ct.  525,  50  L.  Ed.  867,  affirming  178  N.  Y.  557,  70 
N.  E.  1099. 

26  In  this  connection  the  case  of  State  ex  rel.  Aldrach  v.  Morse,  31  Utah, 
213,  87  Pac.  705,  7  L.  R.  A.  (N.  S.)  1127,  is  of  interest.     In  this  case,  on  an 


§   99)  GROUNDS   FOR   DIVORCE.  191 

following  the  New  York  rule,  that  the  Connecticut  court  acquired  no 
jurisdiction  over  her  to  grant  a  divorce.^' 


GROUNDS  FOR  DIVORCE— ADULTERY. 

99.  Adultery  is  the  voluntary  intercourse  of  a  married  person  witli 
another  than  his  or  her  ^vife  or  husband,  and  is  almost  uni- 
versally made  a  ground  of  divorce. 

As  has  been  seen,  prior  to  1858,  in  England,  it  was  only  the  eccle- 
siastical courts  which  had  jurisdiction  to  grant  divorces.  These  courts 
granted  divorces  on  the  ground  of  adultery,  but  the  divorce  was  on- 
ly a  mensa  et  thoro.  The  only  way  in  which  a  divorce  a  vinculo  mat- 
rimonii could  be  obtained  was,  in  Catholic  England,  by  dispensation 
from  the  Pope,  and  later,  in  Protestant  England,  by  a  bill  in  Parlia- 
ment. So,  in  this  country,  the  only  way  in  which  a  divorce  a  vinculo 
could  be  obtained,  even  on  the  ground  of  adultery,  was  by  recourse 
to  the  Legislature.  There  are  now  in  England,  and  in  most  of  our 
states,  statutes  making  adultery  a  ground  for  an  absolute  divorce  a 
vinculo  matrimonii.  Though  to  some  extent  it  is  otherwise  in  Eng- 
land, the  statutes  in  this  country  do  not,  as  a  rule,  make  any  distinc- 
tion in  this  respect  between  the  rights  of  the  husband  and  those  of  the 
wife.  The  same  acts  of  adultery  which,  when  committed  by  the  wife, 
would  entitle  the  husband  to  a  divorce,  will  entitle  the  wife  to  a  di- 
vorce if  committed  by  the  husband.  The  statutes  are  not  the  same 
in  all  the  states.  In  some  states  a  single  act  of  adultery  is  ground  for 
a  divorce,  while  in  others  there  must  be  a  "living  in  adultery,"  ^^  and 
in  others  the  adultery  must  be  accompanied  by  cruelty,  desertion,  or 
other  aggravating  circumstances.^^ 

Adultery  consists  in  the  voluntary  sexual  intercourse  of  a  married 
person  with  another  than  his  or  her  wife  or  husband,  whether  the 
other  party  to  the  intercourse  is  married  or  single.  Sexual  inter- 
application  for  mandamus  to  compel  the  district  court  to  proceed  with  the 
trial  of  a  suit  for  divorce,  it  was  held  that  the  husband  cannot,  by  abandon- 
.  iug  the  wife  and  going  into  another  state  to  reside,  change  the  matrimonial 
domicile,  so  that  the  court  would  not  have  jurisdiction  of  a  suit  for  divorce 
brought  by  the  wife  in  the  state  of  the  matrimonial  domicile. 

26  Extraterritorial  effect  of  divorce,  see  post,  p.  226. 

27  Prendergast  v.  Prendergast,  146  N.  C.  225,  59  S.  E.  692,  construing  Re- 
visal  1905,  §  3350. 

2  8  Stewart  v.  Stewart,  105  Md.  297,  66  Atl.  16. 


192  SEPARATION  AND  DIVORCE.  (Ch.  7 

course  under  coercion,  as  in  the  case  of  rape  ^®  or  during  insanity,'* 
is  not  adultery,  because  it  is  not  voluntary.  Mistake  of  fact  may 
prevent  an  act  of  intercourse  from  being  adultery ;  as  where  a  woman 
has  intercourse  with  a  man  under  the  belief  that  he  is  her  husband, 
or  where  she  has  married  the  person  with  whom  she  has  intercourse 
under  the  belief  that  her  husband  was  dead.^^  Mistake  of  law,  how- 
ever, is  no  defense.  Belief  in  the  right  to  have  more  than  one  wife 
would  not  prevent  the  intercourse  with  the  latter  from  being  adulter- 
ous.*'' And  intercourse  after  a  second  marriage,  when  a  divorce  from 
a  prior  marriage  is  illegal,  is  adultery,  and  ground  for  a  divorce  from 
the  prior  marriage,  though  there  was  a  bona  fide  belief  in  the  validi- 
ty of  the  divorce.*' 

SAME— CRUELTY. 

100.  Crnelty  is  made  a  g^i'oiuid  of  divorce  in  most  states  by  statnte. 

The  statutes  use  various  terms,  as  "extreme  cruelty,"  "intol- 
erable cruelty,"  "cruel  and  inhuman  conduct,"  conduct  ren- 
dering it  "unsafe  and  improper"  for  the  parties  to  cohabit, 
etc. 

101.  The   general  rule   is   that  conduct  to   come  within  the   statutes 

must  consist  in  the  infliction,  or  threatened  infliction,  of  bod- 
ily harm.     This  may  be 

(a)  By  personal  violence,   either  actual   or  threatened  and  reason- 

ably apprehended. 

(b)  By  Avords  or  conduct,  Tirithout  personal  violence,  causing  mental 

suffering,  and  thereby  injuring,  or  threatening  to  injure,  the 
health. 

102.  In  some  states  falsely  charging  a  \irife  with  adultery  is  held  to 

be  cruelty,  though  unaccompanied  by  bodily  harm;  and  in  a 
few  states  it  is  held  generally  that  bodily  injury  is  not  nec- 
essary. 

29  People  V.  Chapman,  62  Mich.  280,  28  N.  W.  896,  4  Am.  St.  Bep.  857. 

80  Nichols  V.  Nichols,  31  Vt.  328,  73  Am.  Dec.  352;  Broadstreet  v.  Broad- 
street,  7  Mass.  474;  Wray  v.  Wray,  19  Ala.  522;  Id.,  33  Ala.  187;  Mims  v. 
Mims,  33  Ala.  98.    But  see  Matohin  v.  Matchin,  6  Pa.  332,  47  Am.  Dec.  466. 

3iAyl.  Par.  226;  Valleau  v.  Valleau,  6  Paige  (N.  Y.)  207.  Of  course,  this 
does  not  apply  if  the  intercourse  under  the  second  marriage  is  continued 
after  knowledge  that  the  first  spouse  is  still  living.  Mathewson  v.  Mathew- 
son,  18  R.  I.  456,  28  Atl.  801,  49  Am.  St.  Rep.  782. 

8  2  See  Reynolds  v.  U.  S.,  98  U.  S.  145,  25  L.  Ed.  244. 

3  3  SimondB  v.  Simonds,  103  Mass.  572,  4  Am.  Rep.  576;  Leith  v.  Leith,  39 
N.  H.  20 ;  McGiffert  v.  McGiffert,  31  Barb.  (N.  Y.)  69.  See  Palmer  v.  Palmer, 
1  Swab.  &  T.  551. 


§§    100-102)  GROUNDS   FOR  DIVORCE.  193 

In  most  states,  by  statute,  cruelty  is  made  a  ground  for  divorce 
a  vinculo  matrimonii  or  a  mensa  et  thoro.  In  some  it  is  ground  for 
divorce  a  mensa  et  thoro  only.  Various  expressions  are  found  in  the 
statutes  of  the  different  states,  but  they  are  held  to  mean  substantial- 
ly the  same  thing.  These  expressions  are,  in  most  states,  "extreme 
cruelty";  in  some,  "repeated  cruelty";  in  others,  "cruel  or  abusive 
treatment,"  "cruel  and  inhuman  treatment,  whether  practiced  by  us- 
ing personal  violence  or  other  means,"  "cruel  treatment,  outrages,  or 
excesses,  so  as  to  render  their  living  together  insupportable,"  "cruel 
and  inhuman  treatment,  or  personal  indignities,  rendering  life  burden- 
some," 3*  "intolerable  severity,"  "such  conduct  on  the  part  of  the  de- 
fendant towards  the  plaintiff  as  may  render  it  unsafe  and  improper 
for  the  former  to.  cohabit  with  the  latter."  In  some  states  it  is  de- 
clared that  "cruelty,"  within  the  meaning  of  the  statute,  must  con- 
sist of  personal  violence.  In  others  it  is  defined  to  be  "the  infliction 
of  grievous  bodily  injury  or  grievous  mental  suffering."  In  others  it 
is  declared  that  the  treatment  must  be  such  as  to  injure  health  or  en- 
danger reason;  ^^  in  others,  so  cruel  as  to  endanger  life. 

Although  there  are  some  exceptions,  due  to  the  peculiar  wording 
of  particular  statutes,  the  doctrine  almost  universally  accepted  is  that 
cruelty,  to  be  a  ground  for  divorce,  must  consist  of  physical  cruelty, 
either  direct,  or  consequential  without  personal  violence.  Any  con- 
duct which  is  attended  with  bodily  harm,  and  which  renders  it  im- 
possible or  unsafe  to  discharge  the  duties  of  married  life,  may  con- 
stitute cruelty  as  fully  as  direct  violence.^'    Actual  violence  is  not  nec- 

3  4  Simon  v.  Simon,  34  Pa.  Super.  Ct.  182,  holding  tliat  the  communication 
of  a  loathsome  disease  by  a  husband  to  a  wife  is  such  an  indignity  to  her 
person,  rendering  "her  condition  intolerable  and  life  burdensome,"  as  will 
entitle  her  to  a  divorce. 

3  5  See  Robinson  v.  Robinson,  66  N.  H.  600,  23  Atl.  362,  15  L.  R.  A.  121,  49 
Am.  St.  Rep.  632;  Rader  v.  Rader,  136  Iowa,  223,  113  N.  W.  817. 

3  0  It  is  cruelty  in  a  husband  to  refuse  his  wife  the  necessaries  of  life  when 
it  is  in  his  power  to  supply  them.  Dysart  v.  Dysart,  1  Rob.  Ecc.  106,  111, 
125;  Smedley  v.  Smedley,  30  Ala.  714;  Whitacre  v.  Whitacre,  64  Mich!  232^ 
31  N.  W.  327;  Eastes  v.  Eastes,  79  Ind.  363;  Butler  v.  Butler,  1  Pars.  Eq.' 
Cas.  (Pa.)  329.  It  is  cruelty  for  a  husband  to  have  intercourse  with  his  wife 
when  he  knows  that  he  has  a  venereal  disease,  and  infect  her  with  it;  and 
vice  versa.  Collett  v.  Collett,  1  Curt.  Ecc.  678 ;  Anon.,  17  Abb.  N.  C.  (N.  Y.)  231 ; 
Rehart  v.  Rehart  (Or.)  25  Pac.  775.  So  where  a  husband  compels  his  wife  to 
submit  to  excessive  sexual  intercourse,  with  knowledge  of  injury  to  her 
health.  Mayhew  v.  Mayhew,  61  Conn.  233,  23  Atl.  966,  29  Am.  St.  Rep.  195 ; 
Shaw  V.  Shaw,  17  Conn.  189;  Youngs  v.  Youngs,  33  111.  App.  223;  Grant 
TIFF.P.&  D.Rel.(2d  Ed.)— 13 


194  SEPARATION  AND  DIVORCE.  (Ch,  7 

essary  to  constitute  cruelty.'^  Threats  of  violence  made  in  earnest, 
and  which  indicate  an  intention  to  do  bodily  harm,  are  sufficient.  "The 
court  is  not  to  wait  till  the  hurt  is  actually  done."  ^®  On  the  othei 
hand,  mere  threats  not  intended  to  be  carried  out,  and  not  furnish- 
ing reasonable  grounds  for  apprehension  of  bodily  injury,  are  insuffi- 
cient.^® What  must  be  the  extent  of  the  violence  offered,  or  what  will 
reasonably  excite  apprehension,  will  depend  upon  the  circumstances 
of  each  case.  The  station  in  life  and  situation  of  the  parties  and  all 
the  attendant  circumstances  will  be  taken  into  consideration.  A  blow 
between  parties  in  the  lower  conditions  and  in  the  highest  stations  of 
life  has  a  very  different  aspect.***     A  single  act  of  cruelty  may  be  so 

V.  Grant,  53  Minn.  181,  54  N.  W.  1059.  But  denial  of  intercourse  is  not 
cruelty  on  the  part  of  either  the  husband  or  the  wife.  D'Aguilar  v.  D'Agui- 
lar,  1  Hagg.  Ecc.  773;  Cousen  v.  Cousen,  4  Swab.  &  T.  164;  Cowles  v. 
Cowles,  112  Mass.  298;  Magill  v.  Magill,  3  Pittsb.  R.  (Pa.)  25;  Johnson  v. 
Johnson,  31  Pa.  Super.  Ct.  53.  But  see  Campbell  v.  Campbell,  149  Mich.  147, 
112  N.  W.  481,  14  Detroit  Leg.  N.  284,  119  Am.  St.  Rep.  660.  Where  a  hus- 
band had  compelled  his  wife  to  submit  to  two  abortions,  and  insisted  that 
she  should  submit  to  a  third,  and  that  she  should  bear  no  children,  as  a  con- 
dition to  the  continuance  of  the  marital  relation,  such  conduct  constituted  ex- 
treme cruelty,  entitling  the  wife  to  a  divorce.  Dunn  v.  Dunn,  150  Mich.  476, 
114  N.  W.  385,  14  Detroit  Leg.  N.  767. 

3  7  Rader  v.  Rader,  136  Iowa,  223,  113  N.  W.  817. 

3  8  Evans  v.  Evans,  1  Hagg.  Const.  35;  Oliver  v.  Oliver,  Id.  361,  364;  Myt- 
ton  V.  Mytton,  11  Prob.  Div.  141 ;  Bailey  v.  Bailey,  97  Mass.  373 ;  Beebe  v. 
Beebe,  10  Iowa,  133;  Rhame  v.  Rhame,  1  McCord  Eq.  (S.  C.)  197,  16  Am. 
Dec.  597;  Whispell  v.  Whispell,  4  Barb.  (N.  Y.)  217;  Kennedy  v.  Kennedy, 
60  IIow.  Prac.  (N.  Y.)  151;  Id.,  73  N.  Y.  369;  Graecen  v.  Graecen,  2  N.  J.  Eq. 
459;  Hughes  v.  Hughes,  19  Ala.  307;  Freeman  v.  Freeman,  31  Wis.  235; 
Harratt  v.  Ilarratt,  7  N.  H.  196,  26  Am.  Dec.  730;  Griffith  v.  Griffith,  77  Neb. 
981,  108  N.  W.  981;  Beekman  v.  Beekman,  53  Fla.  858,  43  So.  923;  Williams 
V.  Williams,  101  Minn.  400,  112  N.  W.  528.  In  this  case  it  was  also  held 
that  reiKjated  charges  made  by  the  wife  against  the  husband,  not  shown  to 
have  been  based  on  reasonable  cause,  published  by  her  for  many  years  in 
private  and  public,  rendering  him  a  subject  of  discussion  and  ridicule,  re- 
sulting in  injury  to  his  business  and  in  the  practical  separation  of  the  par- 
ties, constitute  cruel  and  inhuman  treatment,  entitling  the  husband  to  a 
divorce. 

3  0  Evans  v.  EA'ans,  1  Hagg.  Const.  35 ;  Eshbach  v.  Eshbach,  23  Pa.  343; 
Close  v.  Close,  24  N.  J.  Eq.  338;  Shell  v.  Shell,  2  Sneed  (Tenn.)  716;  Coursey 
V.  Coursey,  60  111.  186 ;  Uhlmann  v.  Uhlmann,  17  Abb.  N.  C.  (N.  Y.)  236. 

40  Evans  v.  Evans,  1  Hagg.  Const.  35;  Westmeath  v.  Westmeath,  2  Hagg. 
Ecc.  Supp.  1,  p.  72;  Barrere  v.  Barrere,  4  Johns.  Ch.  (N.  Y.)  187;  Kline  v. 
Kline,  50  Mich.  438,  15  N.  W.  541;  Fleytas  v.  Pigneguy,  9  La.  419;  Donald 
V.  Donald,  21  Fla.  571. 


§§    100-102)  GROUNDS   FOR  DIVORCE.  195 

severe  as  to  justify  a  divorce  on  the  ground  of  cruelty,*^  but,  as  a 
rule,  it  is  not  sufficient.*^  A  single  act  committed  in  a  sudden  pas- 
sion might  not  constitute  cruelty,  when  the  same  act  committed  as 
the  result  of  a  deliberate,  fixed  intention  to  abuse  would  suffice.*^ 

There  are  some  cases  which  recognize  as  a  ground  of  divorce, 
under  the  statutes,  mere  mental  suffering  caused  by  abusive  or  un- 
kind treatment.**     And  in  several  states,  where  the  courts  do  not 


41  Reeves  v.  Reeves,  3  Swab.  &  T.  130;  French  v.  Frencb,  4  Mass.  587; 
Miller  v.  Miller,  72  Tex.  250,  12  S.  W.  1G7. 

4  2  Holden  v.  Holden,  1  Hagg.  Const.  453;  Smallwood  v.  Smallwood,  2 
Swab.  &  T.  397;  Fleytas  v.  Pigneguy,  9  La.  419;  Lauber  v.  Mast,  15  La. 
Ann.  .593 ;  Jemiess  v.  Jenness,  60  N.  H.  211 ;  Richards  v.  Richards,  1  Grant, 
Cas.  (Pa.)  3S9.  In  some  states  the  statute  requires  "repeated  cruelty."  Hen- 
derson V.  Henderson,  88  111.  248. 

43  Pillar  V.  Pillar,  22  Wis.  658;  Cook  v.  Cook,  11  N.  J.  Eq.  195;  Finley  v. 
Finley,  9  Dana  (Ky.)  52,  33  Am.  Dec.  528;  Moyler  v.  Moyler,  11  Ala.  620. 
Isolated  and  infrequent  acts  of  cruelty  by  a  husband  to  his  wife,  culminating 
in  physical  violence  of  a  dangerous  character,  accompanied  by  abusive  words 
and  a  disavowal  of  any  affection  for  her,  are  sufficient  grounds  of  divorce 
from  the  bed  and  board,  especially  where  tbe  wife  is  a  weak  and  immature 
child  of  16  years.    Boyle  v.  Boyle  (N.  J.  Ch.)  67  A.  690. 

44  Carpenter  v.  Carpenter,  30  Kan.  744,  2  Pac.  122,  46  Am.  Rep.  108;  Barnes 
V.  Barnes,  95  Cal.  171,  30  Pac.  299,  16  L.  R.  A.  660;  Fleming  v.  Fleming,  95 
Cal.  430,  30  Pac.  506,  29  Am.  St.  Rep.  124 ;  Atherton  v.  Atherton,  82  Hun,  179, 
31  N.  Y.  Supp.  977;  Waltermire  v.  Waltermire,  110  N.  Y.  183,  17  N.  E.  739. 
"It  was  formerly  thought  that  to  constitute  extreme  cruelty,  such  as  would 
authorize  the  granting  of  a  divorce,  physical  violence  is  necessary ;  but  the 
modern  and  better  considered  cases  have  repudiated  this  doctrine,  as  taking 
too  low  and  sensual  a  view  of  the  marriage  relation,  and  it  is  now  very 
generally  held  that  any  unjustiflable  conduct  on  the  part  of  either  the  hus- 
band or  wife  which  so  gi'ievously  wounds  the  feelings  of  tbe  other,  or  so 
utterly  destroys  the  peace  of  mind  of  tbe  other,  as  to  seriously  impair  tbe 
health,  *  *  *  or  such  as  utterly  destroys  the  legitimate  ends  and  objects 
of  matrimony,  constitutes  extreme  cruelty,  under  the  statute."  Carpenter  v. 
Caii^enter,  supra.  As  the  cases  cited  In  the  following  notes  will  show,  the 
latter  part  of  the  above  quotation  is  not,  as  it  purports  to  be,  in  accord  with 
the  weight  of  opinion.  It  should  be  noted,  in  connection  with  the  California 
cases  cited  above,  that  tbe  California  statute  defines  "extreme  cruelty"  to  be 
the  infliction  of  grievous  bodily  injury  "or  grievous  mental  suffering."  See 
Barnes  v.  Barnes,  supra.  Rev.  Codes  N.  D.  1905,  §  4051,  contains  the  same 
provision.  See  Mahnken  v.  Mahnkeu,  9  N.  D.  188,  82  N.  W.  870,  and  Mosher 
V.  Mosher,  16  N.  D.  269,  113  N.  W.  99,  12  L.  R.  A.  (N.  S.)  820.  In  the  latter 
case  It  was  said  that  the  habitual  use  of  profane  language  and  telling  obscene 
stories  by  the  wife  to  the  husband  and  to  third  parties  in  his  presence  and 
against  his  wishes  furnishes  a  ground  for  divorce,  where  the  characteristics 


196  SEPARATION  AND  DIVORCE.  (Ch.  7 

recognize  such  a  ground  generally,  they  do  recognize  as  cruelty  a  false 
accusation  of  adultery  made  by  a  husband  against  his  wife.*"  But, 
by  the  weight  of  authority,  both  in  this  country  and  in  England,  the 
abusive  and  unkind  treatment  must  to  some  extent  result  in  or  threat- 
en bodily  harm.  Mere  mental  suffering  caused  by  unkind,  abusive, 
or  insulting  words  or  conduct  is  not  enough:*^  In  a  leading  case  Lord 
Stowell  said :  "What  merely  wounds  the  mental  feelings  is  in  few 
cases  to  be  admitted,  where  they  are  not  accompanied  with  bodily  in- 
jury, either  actual  or  menaced.  Mere  austerity  of  temper,  petulance 
of  manners,  rudeness  of  language,  a  want  of  civil  attention  and  accom- 
modation, even  occasional  sallies  of  passion,  if  they  do  not  threaten 
bodily  harm,  do  not  amount  to  legal  cruelty.  They  are  high  moral  of- 
fenses in  the  marriage  state,  undoubtedly,  not  innocent,  surely,  in 
any  state  of  life,  but  still  they  are  not  that  cruelty  against  which  the 
law  can  relieve.  Under  such  misconduct  of  either  of  the  parties — for 
it  may  exist  on  one  side  as  well  as  on  the  other — the  suffering  party 
must  bear  in  some  degree  the  consequences  of  an  injudicious  connec- 
tion;   must  subdue  by  decent  resistance  or  by  prudent  conciliation; 

of  the  husband  are  such  that  this  course  of  conduct  causes  him  humiliation 
and  grievous  mental  suffering. 

45  Smith  V.  Smith,  8  Or.  100;  Eggerth  v.  Eggerth,  15  Or.  626,  16  Pac.  650; 
Warner  v.  Wagner,  36  Minn.  230,  30  N.  W.  766;  Palmer  v.  Palmer,  45  Mich. 
150,  7  N.  W.  760,  40  Am.  Rep.  461;  Blurock  v.  Blurock,  4  Wash.  495,  30  Pac. 
637;  Jones  v.  Jones,  60  Tex.  451;  Bahn  v.  Bahn,  62  Tex.  518,  50  Am.  Rep.  530; 
Clinton  v.  Clinton,  60  Mo.  App.  296;  Waltermire  v.  Waltermire,  110  N.  Y. 
183,  17  N.  E.  739;  De  Meli  v.  De  Meli,  120  N.  Y.  485,  24  N.  E.  996,  17  .:Vm. 
St.  Rep.  652;  Fowler  v.  Fowler,  58  Hun,  601,  11  N.  Y.  Supp.  419.  But  see 
Cheatham  v.  Cheatham,  10  Mo.  296. 

46  Evans  v.  Evans,  1  Hagg.  Const.  35;  Harris  v.  Harris,  2  Phillim.  Ill,  1 
Eng.  Ecc.  R.  204;  Barlee  v.  Barlee,  1  Addams,  Elcc.  301;  Oliver  v.  Oliver,  1 
Hagg.  Const.  361;  Kirkman  v.  Kirkman,  Id.  409;  Detrick's  Appeal,  117  Pa. 
452,  11  Atl.  882;  Shaw  v.  Shaw,  17  Conn.  189;  Boggess  v.  Boggess,  4  Dana 
(Ky.)  307 ;  Daiger  v.  Daiger,  2  Md.  Ch.  335 ;  Close  v.  Close,  24  N.  J.  Eq.  338 ; 
Henderson  v.  Henderson,  88  HI.  248;  Moyler  v.  Moyler,  11  Ala.  620;  Lucas 
V.  Lucas,  2  Tex.  112 ;  Kenley  v.  Kenley,  2  How.  (Miss.)  751 ;  Maben  v.  Maben, 
72  Iowa,  058,  34  N.  W.  462;  Vanduzer  v.  Vanduzer,  70  Iowa,  614,  31  N.  W. 
956;  Cheatham  v.  Cheatham,  10  Mo.  296;  Disborough  v.  Disborough  (N.  J. 
Ch.)  26  Atl.  852.  The  use  of  abusive  language  may  be  shown  in  connection 
with  acts  or  threats  of  physical  violence,  as  characterizing  them.  Dysart 
V.  Dysart,  1  Rob.  Ecc.  106;  Gibbs  v.  Gibbs,  18  Kan.  419;  Day  v.  Day,  56  N. 
H.  316;  Farnham  v.  Faruham,  73  111.  497;  Kennedy  v.  Kennedy,  73  N.  Y. 
369;  Johns  v.  Johns,  57  Miss.  530;  Goodrich  v.  Goodrich,  44  Ala.  070;  Thomas 
y.  Thomas,  20  N.  J.  Eq.  97 ;  SU'aus  v.  Straus,  67  Hun,  491,  22  N.  Y.  Supp.  567. 


§§    100-102)  GROUNDS   FOR  DIVORCE.  197 

and,  if  this  cannot  be  done,  both  must  suffer  in  silence.  And  if  it  be 
complained  that,  by  this  inactivity  of  the  courts,  much  injustice  may  be 
suffered,  and  much  misery  produced,  the  answer  is  that  courts  of  jus- 
tice do  not  pretend  to  furnish  cures  for  all  the  miseries  of  human  life. 
They  redress  or  punish  gross  violations  of  duty,  but  they  go  no  fur- 
ther. They  cannot  make  men  virtuous;  and,  as  the  happiness  of  the 
world  depends  upon  its  virtue,  there  may  be  much  unhappiness  in  it 
which  human  laws  cannot  undertake  to  remove."  *^  "The  law  does 
not  permit  courts  to  sever  the  marriage  bond,  and  to  break  up  House- 
holds, merely  because  parties,  from  unruly  tempers  or  mutual  wrang- 
lings,  live  unhappily  together.  It  requires  them  to  submit  to  the  or- 
dinary consequences  of  human  infirmities  and  of  unwise  selections; 
and  the  misconduct  which  will  form  a  good  ground  for  a  legal  separa- 
tion must  be  very  serious,  and  such  as  amounts  to  extreme  cruelty,  en- 
tirely subverting  the  family  relations,  by  rendering  the  association  in- 
tolerable." *8  "Although  the  character  of  the  ill  treatment,  whether 
it  operates  directly  upon  the  body,  or  primarily  upon  the  mind  alone, 
and  all  the  attending  circumstances  are  to  be  considered  for  the  pur- 
pose of  estimating  the  degree  of  cruelty,  yet  the  final  test  of  the  suffi- 
ciency, as  a  cause  of  divorce,  must  be  its  actual  or  reasonably  appre- 
hended injurious  effect  upon  the  body  or  health  of  the  complaining 
party.  *  *  *  The  practical  view  of  the  law  is  that  a  degree  of 
cruelty  which  cannot  be  perceived  to  injure  the  body  or  the  health  of 
the  body  'can  be  practically  endured,'  and  must  be  endured  if  there 
is  no  other  remedy  than  by  divorce,  because  no  'scale'  by  which  to 
gauge  the  purely  mental  susceptibilities  and  sufferings  has  yet  been 
invented  or  discovered,  except  such  as  indicate  the  degrees  thereof  by 
their  perceptible  effects  upon  the  physical  organization  of  the  body."  *« 
When  the  mental  suffering  is  so  great  that  it  preys  upon  the  mind 
and  undermines  the  health,  though  the  suffering  is  caused  by  words 
and  conduct,  unaccompanied  by  any  act  of  physical  violence,  the  re- 

*7  Evans  v.  Evans,  1  Hagg.  Const.  35. 

48  Cooper  V.  Cooper,  17  Mich.  205,  97  Am.  Dec.  182.  See,  also,  Olson  v. 
Olson,  103  Iowa,  553,  106  N.  W.  758,  holding  that  incompatibility  of  temper 
is  no  ground  for  divorce. 

*9  Waldron  v.  Waldron,  85  Cal.  251,  24  Pac.  649,  858,  9  L.  R.  A.  487.  In  a 
later  case  in  California  the  court  said  that  this  quotation  was  too  narrow 
under  their  statute  declaring  extreme  cruelty  to  be  the  infliction  of  grievous 
bodily  injury,  "or  grievous  mental  suffering."  Barnes  v.  Barnes,  95  Cal.  171, 
30  Pac.  299,  16  L.  R.  A.  660;  Fleming  v.  Fleming,  95  Cal.  430,  30  Pac.  566, 
29  Am.   St.   Rep.  124. 


198  SEPARATION  AND  DIVORCE.  (Ch.  7 

suit  is  bodily  harm,  and  hence  such  conduct  constitutes  legal  cruelty. 
The  tendency  of  modern  decisions,  as  the  effect  of  mental  suffering 
upon  bodily  health  has  come  to  be  more  fully  understood,  is  towards 
much  greater  latitude  than  is  found  in  the  earlier  cases,  in  granting 
divorces  in  cases  of  so-called  "mental  cruelty."  Without  repudiating 
the  doctrine  that  the  injury  must  be  physical,  the  courts  recognize  that 
legal  cruelty  may  exist  in  systematic  abuse,  humiliating  insults  and 
annoyances,  causing  mental  suffering  and  consequent  ill  health,  as  ful- 
ly as  in  acts  of  violence.'"'  "A  husband  may,  by  a  course  of  humiliat- 
ing insults  and  annoyances,  practiced  in  the  various  forms  which  in- 
genious malice  could  readily  devise,  eventually  destroy  the  life  or 
health  of  his  wife,  although  such  conduct  may  be  unaccompanied  by 
violence,  positive  or  threatened.  Would  the  wife  have  no  remedy  in 
such  circumstances  under  our  divorce  laws,  because  actual  or  threat- 
ened personal  violence  formed  no  element  in  such  cruelty?  The  an- 
swer to  this  question  seems  free  from  difficulty,  when  the  subject  is 
considered  with  reference  to  the  principles  on  which  the  divorce  for 
cruelty  is  predicated.  The  courts  intervene  to  dissolve  the  marriage 
bond  under  this  head,  for  the  conservation  of  the  life  or  health  of  the 
wife,  endangered  by  the  treatment  of  the  husband.  The  cruelty  is 
judged  from  its  effects,  not  solely  from  the  means  by  which  those  ef- 
fects are  produced.  To  hold  absolutely  that,  if  a  husband  avoids  posi- 
tive or  threatened  personal  violence,  the  wife  has  no  legal  protection 
against  any  means  short  of  these  which  he  may  resort  to,  and  which 
may  destroy  her  life  or  health,  is  to  invite  such  a  system  of  infliction 
by  the  indemnity  given  the  wrongdoer.  The  more  rational  application 
of  the  doctrine  of  cruelty  is  to  consider  a  course  of  marital  unkindness 
with  reference  to  the  effect  it  must  necessarily  produce  on  the  life 

BO  Butler  v.  Butler,  1  Pars.  Eq.  Uas.  (Pa.)  329;  Kelly  v.  Kelly,  2  Prob.  & 
Div.  31;  Walmesley  v.  Walmesley,  1  Reports,  529,  G9  Law  T.  (N.  S.)  152; 
Harding  v.  Harding,  36  Oolo.  106,  85  Pac.  423;  Brown  v.  Brown,  129  Ga.  246, 
58  S.  15.  825 ;  Bush  v.  Bush  (Tex.  Civ.  App.)  103  S.  W.  217 ;  Bailey  v.  Bailey, 
97  Mass.  371 ;  Kelly  v.  Kelly,  18  Nev.  49,  1  Pac.  194,  51  Am.  Rep.  732;  Fowler 
V.  Fowler,  58  Hun,  601,  11  N.  T.  Supp.  419;  Cole  v.  Cole,  23  Iowa,  433;  Day 
V.  Day,  84  Iowa,  221,  50  N.  W.  979;  Williams  v.  Williams,  23  Fla.  324,  2 
South.  768 ;  Powelson  v.  Powelson,  22  Cal.  358 ;  Wolff  v.  Wolff,  102  Cal.  433, 
36  Pac.  767;  Sylvis  v.  Sylvis,  11  Colo.  319,  17  Pac.  912;  Rosenfeld  v.  Rosen- 
feld,  21  Colo.  16,  40  Pac.  49;  Latham  v.  Latham,  30  Grat.  (Va.)  307;  Free- 
man V.  Freeman,  31  Wis.  235,  249;  Glass  v.  Wynn,  76  Ga.  319;  Leach  v. 
Leach  (Me.)  8  Atl.  349;  Carpenter  v.  Carpenter,  30  Kan.  712,  2  Pac.  122,  46 
Am.  Rep.  108. 


I 


§    103)  GROUNDS  FOR  DIVORCE.  199 

or  health  of  the  wife,  and,  if  it  has  been  such  as  to  affect  or  injure 
either,  to  regard  it  as  true  legal  cruelty."  ^^ 

A  divorce  on  the  ground  of  cruelty  will  not  be  granted  if  the  ill 
treatment  has  been  caused  by  the  misconduct  of  the  plaintiff.  Cruel- 
ty, as  a  foundation  for  a  divorce,  must  be  unmerited  and  unprovoked. 
"If  her  conduct  be  totally  incompatible  with  the  duty  of  a  wife,  if  it 
be  violent  and  outrageous,  if  it  justly  provoke  the  indignation  of  the 
husband,  and  cause  danger  to  his  person,  she  must  reform  her  own 
disposition  and  manner."  ^^  But  although  the  plaintiff  may  have 
brought  the  ill  treatment  of  which  she  complains  upon  herself,  if  it 
is  wholly  out  of  proportion  to  her  offense,  intemperate,  and  inexcusa- 
bly severe,  her  misconduct  will  not  bar  her  right  to  relief.^' 

SAME— DESERTION. 

103.  In  most  states,  by  statute,  desertion  for  a  prescribed  period  is 
made  ground  for  divorce.  Desertion  is  witlidraw^al  from  co- 
habitation by  one  of  tbe  parties,  with  intent  to  abandon  the 
other,  •without  the  other's  consent,  and  without  justification. 
In  detail,  to  entitle  an  abandoned  husband  or  ^vife  to  a  di- 
vorce  on   the   ground   of  desertion — 

(a)  There  must  have  been  a  cessation  of  cohabitation. 

(b)  Cohabitation  must  have   ceased  for  the   entire   statutoi'y  period. 

(c)  There   must   have   been   an  intent   to   abandon. 

(d)  There  must  have  been  no  consent  on  the  part  of  the  abandoned 

spouse. 

(e)  There  must  have  been  no  misconduct  on  the  part  of  the   aban- 

doned spouse  justifying  the  abandonment. 

61  Butler  V.  Butler,  1  Paji'S.  Eq.  Cas.  (Pa.)  329. 

62  Waring  v.  Waring,  2  Phillim.  132;  Poor  v.  Poor,  8  N.  H.  307,  29  Am. 
Dec.  6G4 ;  Skinner  v.  Skinner,  5  Wis.  449 ;  Von  Glahn  v.  Von  Glahn,  46  111. 
134;  Knight  v.  Knight,  31  Iowa,  451;  Moulton  v.  Moulton,  2  Barb.  Ch.  (N. 
Y.)  3u9;  Richards  v.  Richards,  37  Pa.  225;  Daiger  v.  Daiger,  2  Md.  Ch.  335; 
Childs  V.  Childs,  49  Md.  509 ;  Johnson  v.  Johnson,  14  Cal.  4G0 ;  Reed  v.  Reed, 
4  Nev.  395;  Harper  v.  Harper,  29  Mo.  301.  Violence  committed  in  a  quarrel 
in  which  both  are  at  fault,  and  resulting  in  equal  injury  to  both,  is  not 
ground  for  divorce.  Soper  v.  Soper,  29  Mich.  305;  Castanedo  v.  Fortier,  34 
La.  Ann.  135 ;  Maben  v.  Maben,  72  Iowa,  658,  34  N.  W.  402. 

5  3  Evans  v.  Evans,  1  Hagg.  Const.  35;  Waring  v.  Waring,  2  Phillim.  132; 
Westmeath  v.  Westmeath,  2  Hagg.  Ecc.  Supp.  1,  72;  Hawkins  v.  Hawkins, 
65  Md.  104,  3  Atl.  749;  King  v.  King,  28  Ala.  315;  Segelbaum  v.  Segelbaum, 
39  Minn.  258,  39  N.  W.  492 ;  Eideumuller  v.  Eidenmuller,  37  Cal.  364 ;  Boeck 
V.  Boeck,  16  Neb.  196,  20  N.  W.  223;  Marsh  v.  Marsh,  64  Iowa,  667,  21  N. 
W.  130;  Machado  v.  Bonet,  39  La.  Ann.  475,  2  South.  49. 


200  SEPARATION  AND  DIVORCE.  (Ch.  7 

As  was  stated  in  treating  of  the  effect  of  marriage  upon  the  per- 
sons of  the  spouses,  they  are  mutually  entitled  to  cohabitation  and 
intercourse.  It  is  true  that  in  this  country  no  suit  will  lie  for  restitu- 
tion of  conjugal  rights,  and  that,  in  the  absence  of  a  statute,  there  is 
no  legal  remedy  by  which  an  abandoned  spouse  can  either  compel  the 
other  to  return,  or  be  freed  from  the  marriage  tie.  An  abandoned 
wife  has  certain  powers  which  she  does  not  have  while  cohabiting 
with  her  husband,  as  the  power  to  engage  in  business  and  contract  as 
a  feme  sole,  and  the  power  to  purchase  necessaries  on  her  husband's 
credit,  if  she  can  obtain  them ;  but  most  of  her  disabilities  remain  not- 
withstanding the  abandonment,  and  the  rights  of  her  husband  in  her 
property  continue. 

This  is  the  state  of  things  at  common  law,  but  it  has  been  changed 
to  some  extent  in  most  states  by  statutes  making  desertion  a  ground 
for  divorce.  Desertion  consists  in  the  willful  and  unjustifiable  aban- 
donment of  one  of  the  spouses  by  the  other,  without  the  other's  con- 
sent."^* The  length  of  time  during  which  the  desertion  must  last 
varies  under  the  statutes  of  the  different  states.  In  some  it  must  last 
for  three  years,  while  in  others  it  need  last  for  one  year  only.  To 
constitute  such  a  desertion  as  will  entitle  the  aggrieved  spouse  to  a  di- 
vorce, there  must  be  (1)  a  cessation  of  cohabitation  (2)  for  the  time 
prescribed  by  the  statute ;  (3)  an  intention  to  abandon ;  (4)  want  of 
consent  on  the  part  of  the  party  abandoned ;  and  (5)  the  abandonment 
must  be  unjustifiable.  These  are  the  elements  of  a  "desertion,"  as 
the  term  is  used  in  the  divorce  laws. 

Abandonment  and  Cessation  of  Cohabitation. 

To  cohabit  is  to  live  together  as  husband  and  wife."  Although  a 
husband  may  continue  to  support  his  wife,  there  is  a  cessation  of  co- 
habitation if  they  cease  to  dwell  together.  "There  is  no  more  impor- 
tant right  of  the  wife  than  that  which  secures  to  her,  in  the  marriage 
relation,  the  companionship  of  her  husband  and  the  protection  of  his 
home.  His  willful  denial  of  this  right,  with  the  intentional  and  per- 
manent abandonment  of  all  matrimonial  intercourse,  against  her  con- 
sent, is  desertion,  within  the  meaning  of  our  statute;    and  such  con- 


64  Bailey  v.  Bailey,  21  Grat  (Va.)  43 ;  Barnett  v.  Baraett,  27  Ind.  App. 
4G6,  61  N.  E.  737;  Burk  v.  Burk,  21  W.  Va.  445;  Rose  v.  Rose,  50  Mich.  92, 
14  N.  W.  711;  Bennett  v.  Bennett,  43  Conn.  313;  Hardenbergh  v.  Harden- 
bergh,  14  Cal.  654 ;  Sergent  v.  Sergeut,  33  N.  J.  Eq.  204. 

65  Yardley's  Estate,  75  Pa.  207;  Pollock  v.  Pollock,  71  N.  Y.  137;  ante.  p.  53. 


§    103)  GROUNDS   FOR  DIVORCE.  201 

duct  is  not  relieved  by  the  fact  that  he  has  from  time  to  time  contribut- 
ed to  her  support  and  the  support  of  her  children."  "'  Whether  re- 
fusal of  marital  intercourse  is  desertion  is  a  question  upon  which  the 
authorities  are  conflicting.  Desertion  was  not  a  ground  of  divorce  in 
the  ecclesiastical  courts.  There  the  remedy  was  by  suit  for  restitu- 
tion of  conjugal  rights.  Since  the  jurisdiction  of  the  ecclesiastical 
courts  in  that  action  extended  only  to  enforcing  cohabitation,  and  not 
to  compelling  marital  intercourse,"^^  it  has  been  held,  in  analogy  to 
the  suit  for  restitution  of  conjugal  rights,  or  independently  of  such 
consideration,  that  such  refusal  does  not  constitute  desertion.^^  Some 
of  the  courts  have  taken  the  contrary  view,  and  hold  that  refusal  of 
sexual  intercourse  for  the  period  necessary  to  constitute  desertion  un- 
der the  statute  is  desertion,  within  the  meaning  of  the  statute.^  ^ 

There  may  be  desertion  without  a  going  away.  When  either  spouse, 
after  having  deserted  the  other,  offers  in  good  faith  to  return,  but  is 
refused,  such  refusal,  unless  justified,  will  constitute  desertion.^"  And 
a  refusal  to  renew  cohabitation  after  a  separation  by  consent  is,  if  the 
other  elements  are  present,  a  desertion  on  the  part  of  the  one  so  refus- 
mg.«^    As  has  been  seen  in  another  place,  the  husband  has  a  right  to 

eeMagrath  v.  Magrath,  103  Mass.  577,  4  Am.  Rep.  579;  Yeatman  v.  Yeat- 
man,  1  Prob.  &  Div.  489.  Likewise,  when  a  husband  has  been  deserted  by 
his  wife,  he  may  obtain  a  divorce  on  that  ground,  though  he  has  continued 
to  provide  for  her.  Macdonald  v.  Macdonald,  4  Swab.  &  T.  242;  Stoffer  v. 
Stoffer,  50  Mich.  491,  15  N.  W.  564 ;  Bander's  Appeal,  115  Pa.  480,  10  Atl. 
41;  Parker  v.  Parker,  28  111.  App.  22. 

5  7  Forster  v.  Forster,  1  Hagg.  Const.  154. 

5  8  Segelbaum  v.  Segelbaum,  39  Minn.  258,  39  N.  W.  492;  Pfannebecker  v. 
Pfannebecker,  133  Iowa,  425,'  110  N.  W.  618,  119  Am.  St.  Rep.  608 ;  Watson 
V.  Watson,  52  N.  J.  Eq.  349,  28  Atl.  467;  Southwick  v.  Southwick,  97  Mass. 
327,  93  Am.  Dec.  95;  Cowles  v.  Cowles,  112  Mass.  298;  Steele  v.  Steele,  1 
MacArthur  (D.  C.)  505;  Reid  v.  Reid,  21  N.  J.  Eq.  331;  Stewart  v.  Stewart, 
78  Me.  548,  7  Atl.  473,  57  Am.  Rep.  822 ;  Morrison  v.  Morrison,  20  Cal.  432 ; 
Eshbach  v.  Eshbach,  23  Pa.  343.     See  Kennedy  v.  Kennedy,  87  111.  254. 

5»Fritts  v.  Fritts,  36  111.  App.  31;  Graves  v.  Graves,  88  Miss.  677,  41  South. 
384;  Evans  v.  Evans,  93  Ky.  510,  20  S.  W.  605.  See  Heermance  v.  James,  47 
Barb.  (N.  Y.)  120;  Fishli  v.  Fishli,  2  Litt.  (Ky.)  337;  1  Bish.  Mar.,  Div.  &  Sep. 
§  1676  et  seq. 

60  Grove's  Appeal,  37  Pa.  443;  Clement  v.  Mattison,  3  Rich.  Law  (S.  C) 
93;  English  v.  English,  6  Grant  (U.  C.)  580;  M'Gahay  v.  Williams,  12  Johns. 
(N.  Y.)  293;  Fellows  v.  Fellows,  31  Me.  342;  Walker  v.  Laighton,  31  N.  H. 
Ill;  Hannig  v.  Hannig  (Tex.  Civ.  App.)  24  S.  W.  695.  See  cases  cited  in 
note  69,  infra. 

•1  Butler  V    Butler,  1  Pars.  Eq.  Cas.  (Pa.)  329;  Hankinson  v.  Haukinson, 


202  SEPARATION  AND  DIVORCE.  (Ch.  7 

fix  the  family  domicile,  subject  to  some  restrictions.  If,  therefore,  the 
wife,  without  justifiable  cause,  refuses  to  follow  him,  she  is  guilty  of 
desertion.®^ 

By  the  weight  of  authority,  if  a  husband  drives  his  wife  away  from 
him,  or  by  his  misconduct  gives  her  justifiable  cause  for  leaving  him, 
his  conduct  amounts  to  desertion  as  fully  as  if  he  left  her,  and  will 
support  a  suit  by  the  wife  for  a  divorce  on  that  ground.®'  The  Massa- 
chusetts court  has  held  the  contrary;®*  but  reason,  as  well  as  au- 
thority, is  against  it.  As  was  said  by  Putnam,  J.,  dissenting,  m  a 
Massachusetts  case:  "Now,  to  all  legal  and  reasonable  intendment, 
the  wife  who  is  obliged  to  fly  from  her  husband's  violence  and  house 
into  the  street,  for  her  preservation,  is  to  be  considered  to  be  there, 
not  of  her  own  free  will,  but  by  reason  of  the  force  and  violence  of 
her  husband.  He  has  driven  her  from  him ;  and  I  hold  that  it  would 
be  a  perversion  of  terms  to  say  that  she,  under  those  circumstances, 
deserted  him.  *  *  *  Having  done  the  outrage,  the  husband  leaves 
her  to  go  into  the  world  without  house,  home,  or  shelter,  food  or  rai- 
ment, support,  protection,  or  aid  from  him.  *  *  *  j  call  this  de- 
sertion." ^^ 

Period  of  Abandonment. 

To  entitle  an  abandoned  husband  or  wife  to  a  divorce,  the  cessa- 
tion of  cohabitation  must  continue  during  the  whole  period  prescrib- 
ed by  the  statute.  If  cohabitation  is  resumed  even  for  the  briefest 
period,  and  again  ceases,  the  period  of  desertion  must  be  calculated 
from  the  time  of  the  last  abandonment.® ®     Where  a  wife  who  had 


33  N.  J.  Eq.  66;  McAllister  v.  McAllister,  10  Heisk,  (Tenn.)  345;  Gilbert  v. 
Gilbert,  5  Misc.  Rep.  555,  26  N.  Y.  Supp.  30. 

8  2  Sisemore  v.  Sisemore,  17  Or.  542,  21  Pac.  820. 

63  Warner  v.  Warner,  54  Mich.  492,  20  N.  W.  557;  Bamett  v.  Barnett,  27 
Ind.  App.  466,  61  N.  E.  737;  Davenport  v.  Davenport,  106  Va.  736,  56  S.  E. 
562 ;  James  v.  James,  58  N.  H.  268 ;  Grove's  Api)eal,  37  Pa.  443 ;  Morris  v. 
Morris,  20  Ala.  168;  Kinsey  v.  Kinsey,  37  Ala.  398;  Jones  v.  Jones,  95  Ala. 
443,  11  South.  11,  18  L.  R.  A.  95;  Skean  v.  Skean,  33  N.  J.  Eq.  148;  Palmer 
V.  Palmer,  22  N.  J.  Eq.  88,  91;  Levering  v.  Levering,  16  Md.  213;  Harding  v. 
Harding,  22  Md.  337;  Johnson  v.  Johnson,  125  111.  510,  16  N.  E.  891;  Wood 
V.  Wood,  27  N.  C.  674;  Weigand  v.  Weigand,  42  N.  J.  Eq.  699,  11  Atl.  113; 
Whitfield  V.  Whitfield,  89  Ga.  471,  15  S.  E.  543;  Stiles  v.  Stiles,  52  N.  J.  Eq. 
446,  29  Ati.  162. 

e*  Pidge  v.  Pidge,  3  Mete.  (Mass.)  257. 

6B  Per  Putnam,  J.,  in  Pidge  v.  IMdge,  3  Mete.  (Mass.)  257. 

66  Ex  parte  Aldridge,  1  Swab.  &  T.  88 ;  Burk  v.  Burk,  21  W.  Va.  445;  Cross- 


§    103)  GROUNDS  FOR  DIVORCE.  203 

abandoned  her  husband  returned  occasionally  to  look  after  her  chil- 
dren, and  perform  domestic  duties,  it  was  held  that  this  was  not  a  re- 
newal of  cohabitation ;  ^^  but  where  a  wife  returned  and  performed 
ordinary  domestic  duties  for  several  years,  living  in  the  same  house 
with  her  husband,  he  was  denied  a  divorce  for  desertion.** 

Return  or  Offer  to  Return, 

In  case  of  desertion  there  is  always  a  locus  poenitentise  until  the 
right  to  a  divorce  is  complete.  The  deserting  spouse  may,  until  then, 
return,  or  offer  to  return,  and  the  other  must  permit  it.  An  offer  to 
renew  cohabitation  made  by  the  deserting  spouse  in  good  faith  at  any 
time  before  the  separation  has  lasted  for  the  period  required  by  the 
statute  will  bar  a  divorce,  though  refused  by  the  deserted  party.® ^  In- 
deed, as  has  been  seen,  such  a  refusal  constitutes  desertion.''**  Such 
an  offer,  however,  after  the  desertion  has  lasted  for  the  statutory  pe- 
riod, will  be  too  late.'^^ 

Intention  to  Abandon. 

The  mere  cessation  of  cohabitation  for  the  time  prescribed  in  the 
statute  is  not  desertion,  unless  there  is  also  an  intention  to  aban- 
don. The  cessation  of  cohabitation  and  intent  to  abandon  must  con- 
cur.'^ Separation,  for  instance,  caused  by  necessary  absence  on  busi- 
ness, or  by  sickness,  or  other  necessity,  is  not  desertion,  within  the 
meaning  of  the  divorce  law.''^    In  a  Connecticut  case,  it  appeared  that 


man  v.  Grossman,  33  Ala.  486;  Gaillard  v.  Gaillard,  23  Miss.  152;  Kennedy 
V.  Kennedy,  87  111.  250. 

67  Kie  V.  Rie,  34  Ark.  37. 

6  8  Holmes  v.  Holmes,  44  Mich.  555,  7  N.  W.  228. 

6  0  Brookes  v.  Brookes,  1  Swab.  &  T.  326;  Loux  v.  Loux,  57  N.  J.  Eq.  561,  41 
Atl.  358;  Gaillard  v.  Gaillard,  23  Miss.  152;  McUlurg's  Appeal,  66  Pa.  366; 
Prather  v.  Prather,  26  Kan.  273;  Walker  v.  Laighton,  31  N.  H.  Ill;  Friend 
V.  Friend,  Wright  (Ohio)  639;  Fishli  v.  Fishli,  2  Litt.  (Ky.)  337.  Compare 
Garrison  v.  Garrison,  104  S.  W.  980,  31  Ky.  Law  Rep.  1209.  And  see  cases 
cited  in  note  60,  supra. 

7  0  Ante,  p.   201. 

71  Cargill  V.  Cargill,  1  Swab.  &  T.  235.  See  Graeff  v.  Graeff  (N.  J.  Ch.)  25 
Atl.  704. 

7  2  Williams  v.  Williams,  130  N.  Y.  193,  29  N.  E.  98,  14  L.  R.  A.  220,  27  Am. 
St.  Rep.  517;  Heyman  v.  Heyman,  119  App.  Div.  182,  104  N.  Y.  Supp.  227; 
Kupka  V.  Kupka,  132  Iowa,  191,  109  N.  W.  610;  Crounse  v.  Grounse  (Va.)  60 
S.  E.  627. 

73  Taylor  v.  Taylor,  28  N.  J.  Eq.  207;  Howell  v.  Howell,  64  N.  J.  Eq.  191, 
48  Atl.  510;  Walton  v.  Walton,  70  Miss.  662,  25  South.  166,  71  Am.  St  Rep. 


204  SEPARATION  AND  DIVORCE,  (Ch.  7 

the  wife  had  lived  separate  from  her  husband  at  his  request,  because 
of  his  inability  to  furnish  a  satisfactory  support  for  her  or  their  chil- 
dren. "This,"  said  the  court,  "does  not  of  itself  constitute  desertion 
on  his  part.  For  the  purposes  of  this  case,  it  is  sufficient  to  say  that 
the  offense  of  desertion  consists  in  the  cessation  of  cohabitation,  cou- 
pled with  a  determination  in  the  mind  of  the  offending  party  not  to 
renew  it.  This  intent  is  the  decisive  characteristic,  and  the  question  of 
intent  is  always  a  question  of  fact,  and  must  be  proved  either  by  di- 
rect evidence,  or  as  the  necessary  and  certain  consequence  of  other 
facts  clearly  proved.  Mere  separation  may  result  from  necessity  or 
accident,  and  much  against  the  will  of  both  parties."  ''* 

It  is  immaterial  that  the  intention  to  abandon  did  not  exist  at  the 
time  of  the  separation,  if  it  was  afterwards  formed  and  acted  upon. 
The  intention  not  to  return,  formed  after  separation  has  taken  place, 
accompanied  by  continuation  of  the  separation,  is  desertion ;  but  the 
desertion  in  such  a  case  begins  when  the  intention  is  formed.'"' 

That  there  was  an  intent  to  abandon  need  not  be  shown  by  direct 
evidence,  but,  like  intent  in  other  cases  in  which  it  is  material  in  law, 
may  be  inferred  from  the  circumstances.  It  may  be  presumed  from 
long  abandonment  without  apparent  cause.''®  Such  an  intent,  when 
once  shown  to  have  existed,  will  be  presumed  to  have  continued,  un- 
til the  contrary  appears.''^ 

Consent  of  the  Abandoned  Spouse. 

Not  only  must  there  be  a  cessation  of  cohabitation  for  the  stat- 
utory period,  and  an  intent  to  abandon,  to  constitute  desertion,  but 


540.  But  see  Elzas  v.  Elzas,  171  111.  632,  49  N.  B.  717,  where  a  contrary  rule 
is  laid  down. 

7  4  Bennett  v.  Bennett,  43  Conn.  313.  And  see  Bailey  v.  Bailey,  21  Grat. 
(Va.)  43 ;  Burk  v.  Burk,  21  W.  Va.  445 ;  Cook  v.  Cook,  13  N.  J.  Eq.  203 ;  Jen- 
nings V.  Jennings,  Id.  38;  McCoy  v.  McCoy,  3  lud.  555;  Williams  v.  Williams, 
3  Swab.  &  T.  547;  Ex  parte  Aldridge,  1  Swab.  &  T.  88;  Bruner  v.  Bruner,  70 
Md.  105,  16  Atl.  385 ;  Keech  v.  Keech,  1  Prob.  &  Div.  641 ;  Williams  v.  Wil- 
liams, 21  S.  W.  529,  14  Ky.  Law  Rep.  744.  The  confinement  of  a  wife  in  an 
insane  asylum  is  not  an  abandonment  of  her  husband.  Pile  v.  Pile,  94  Ky. 
308,  22  S.  W.  215. 

7  5  Pinkard  v.  Pinkard,  14  Tex.  356,  65  Am.  Dec.  129;  Ahrenfeldt  v.  Ahren- 
feldt,  1  Hoff.  Ch.  (N.  Y.)  47;  Fulton  v.  Fulton,  36  Miss.  517;  Reed  v.  Reed, 
Wright  (Ohio)  224 ;  Gatehouse  v.  Gatehouse,  1  Prob.  &  Div.  331.  See  Conger 
V.  Conger,  13  N.  J.  Eq.  286. 

7  6  Morrison  v.  Morrison,  20  C5al.  431. 

77  Bailey  v.  Bailey,  21  Grat  (Va.)  43;  Gray  v.  Gray,  15  Ala.  779. 


1 


§    103)  GROUNDS   FOR  DIVORCE.  205 

the  abandonment  must  be  without  the  consent  of  the  party  abandon- 
ed. Nothing  is  better  settled  than  that  abandonment  or  separation  by 
actual  consent — whether  such  consent  is  expressed  in  the  form  of  an 
agreement,  or  is  inferred  from  the  conduct  of  the  parties  and  the 
circumstances — cannot  be  relied  upon  as  ground  for  divorce,  "De- 
sertion can  only  be  complained  of  when  it  is  against  the  will  of  the 
party  who  is  deserted  (in  this  case  the  husband),  and  constitutes  a 
grievance  which  deprives  him  of  the  society  of  his  wife  without  his 
consent  or  acquiescence.  It  there  be  a  separation  by  consent,  that 
consent  shows  that  the  parties  deem  it  no  grievance  to  be  deprived 
of  each  other's  society,  and  nothing  but  an  unconditional  and  entire 
resumption  of  their  early  relations  can  restore  them  to  such  a  posi- 
tion as  would  make  a  new  separation  by  the  departure  of  the  wife,  as 
in  this  case,  a  criminal  desertion."  ^* 

The  consent  of  the  abandoned  party,  like  consent  in  other  cases 
where  consent  is  material,  need  not  be  proved  by  direct  evidence, 
but  may  be  inferred  from  his  or  her  conduct,  or  from  the  conduct  of 
both  parties.  The  consent  must  in  some  way  be  manifested.  "The 
undisclosed  emotions  of  the  deserted  party  do  not  affect  his  rights."  ^® 
But  the  fact  of  consent  may  be  shown  by  his  conduct.^" 

Consent  to  the  separation  may  be  inferred  from  a  course  of  con- 
duct inducing  it,^^  or  from  a  course  of  conduct  promoting  the  con- 
tinuance of  a  separation  which  has  already  taken  place. ^^  If,  after 
a  wife  has  separated  from  her  husband,  even  without  justification,  she 

7  8  Cooper  V.  Cooper,  17  Mich.  205,  97  Am.  Dec.  182.  And  see  Cox  v.  Cos, 
35  Mich.  461;  Rose  v.  Rose,  50  Mich.  92,  14  N.  W.  711;  Beller  v.  Beller,  50 
Mich.  51,  14  N.  W.  696;  Ford  v.  Ford,  143  Mass.  577,  10  N.  E.  474;  Lea  v. 
Lea,  8  Allen  (Mass.)  418;  Goldbeck  v.  Goldbeck,  18  N.  J.  Eq.  42;  Benkert  v. 
Benkert,  32  Cal.  467;  Secor  v.  Secor,  1  MacArthur  (D.  C.)  680;  Crow  v.  Crow, 
23  Ala.  583 ;  Stokes  v.  Stokes,  1  Mo.  320 ;  Ingersoll  v.  lugersoll,  49  Pa.  249, 
88  Am.  Dec.  500;  Fulton  v.  Fulton,  36  Miss.  517 ;  Adams  v.  Adams,  66  Hun, 
627,  20  N.  Y.  Supp.  765;  Townsend  v.  Townsend,  L.  R.  3  Prob.  &  Div.  129; 
Fitzgerald  v.  Fitzgerald,  Id.  136;  Buckmaster  v.  Buckmaster,  L.  R.  1  Prob. 
&  Div.  713;  Ward  v.  Ward,  1  Swab.  &  T.  185. 

7  9  Ford  V.  Ford,  143  Mass.  577,  10  N.  E.  474. 

80  Ford  V.  Ford,  143  Mass.  577,  10  N.  E.  474. 

81  Meldowney  v.  Meldowney,  27  N.  J.  Eq.  328;  Gray  v.  Gray,  15  Ala.  779; 
Gillinwaters  v.  Gillinwaters,  28  Mo.  60;  Dwyer  v.  Dwyer,  16  Mo.  App.  422. 

8  2  Taylor  v.  Taylor,  28  N.  J.  Eq.  207;  Cornish  v.  Cornish,  23  N.  J.  Eq.  208; 
Bradley  v.  Bradley,  160  Mass.  258,  35  N.  E.  482;  Payne  v.  Payne  (N.  J.  Ch.) 
28  Atl.  449;  Dwyer  v.  Dwyer,  16  Mo.  App.  422;  Schoen  v.  Schoen,  48  III,  App, 
382. 


206  SEPARATION  AND  DIVORCE.  (Ch.  7 

offers  to  return  to  him,  and  he  refuses  to  receive  her,  her  continuing 
away  is  not  desertion.  And  such  refusal  may  be  inferred  from  his  con- 
duct towards  her  after  the  offer  to  return.  Thus,  where  a  wife  who 
was  hving  apart  from  her  husband,  each  denying  desertion,  and  alleg- 
ing that  the  fault  was  on  the  part  of  the  other,  offered  to  live  with 
him  if  he  would  treat  her  as  a  wife,  and  he  saw  her  but  once  after 
the  offer,  and  never  asked  her  to  come  back,  or  made  any  effort  to 
have  her  return  and  live  with  him,  it  was  held  that  she  was  not  guilty 
of  desertion  after  the  offer.^^ 

Even  where  a  wife  who  has  deserted  her  husband  without  cause 
makes  no  offer  to  return  to  him,  his  conduct  may  show  that  he  would 
not  receive  her  back.  If  he  does  so  act  as  to  show  affirmatively  that 
he  will  not  receive  her  back,  he  consents  to  the  separation,  and  can- 
not rely  upon  its  continuance  as  a  ground  for  divorce.  He  is  not 
bound  to  take  any  active  steps  to  get  her  back,  and  therefore  his  mere 
silence  will  not  amount  to  consent;  but  it  is  a  very  different  thing  if 
he  shows  by  an  overt  act  that  he  is  not  willing  to  receive  her.  On  this 
principle,  it  has  been  held  that  if  a  wife  has  deserted  her  husband,  and, 
pending  the  separation,  he  brings  suit  against  her  for  a  divorce  on  the 
ground  of  adultery,  this  shows  that  he  is  not  willing  to  receive  her 
back,  and  that  he  cannot  rely  on  the  continuance  of  the  separation 
pending  the  suit  as  desertion,  entitling  him  to  a  divorce  on  that 
ground.^*  The  Minnesota  court  has  made  a  distinction  on  this  point 
between  cases  in  which  the  deserting  spouse  is  guilty  of  the  adultery 
and  cases  in  which  he  or  she  is  innocent,  and  has  held  that  where,  aft- 
er a  wife  has  deserted  her  husband,  he  brings  a  suit  for  divorce  on 
the  ground  of  her  adultery  after  the  desertion,  the  divorce  suit  may 
prevent  her  continuing  to  remain  away  from  him  from  being  desertion 
if  she  is  innocent,  but  that  it  cannot  have  this  effect  if  she  is  guilty. 
"If  a  defendant,"  it  was  said,  "resisting  an  action  founded  upon  her 
alleged  desertion,  relies  upon  such  an  intervening  event  as  suspending 
or  interrupting  the  effect  of  the  desertion,  and  if  it  appear  that  her 


83  Bradley  v.  Bradley,  IGO  Mass.  25H,  35  N.  E.  482. 

R4  Ford  V.  Ford,  143  Mass.  577,  10  N.  E.  474.  That  separation  during  the 
pendency  of  divorce  proceedings  is  not  desertion,  see,  also,  Clowes  v.  Clowes, 
9  Jur.  35C;  Marsh  v.  Marsh,  14  N.  J.  Eq.  315,  82  Am.  Dec.  251;  Sykes  v. 
Halstead,  1  Sandf.  (N.  Y.)  483;  Porritt  v.  Porritt,  18  Mich.  420;  Doyle  v. 
Doyle,  2G  Mo.  545 ;  Salorgue  v.  Salorgne,  6  Mo.  App.  G03 ;  Edwards  v.  Green, 
9  La.  Ann.  317 ;  Chipcbase  v.  Chipchase,  48  N.  J.  Eq.  549,  22  Atl.  588;  Graoff 
V.  Graeff  (N.  J.  Ch.)  25  Atl.  704. 


1 


§    104)  GROUNDS  FOR  DIVORCE.  207 

own  wrongful  conduct  naturally  caused  the  event  relied  upon  in  de- 
fense, such  a  defense  cannot  avail  her.  An  unjustifiable  desertion  con- 
tinues to  be  desertion,  in  legal  contemplation  and  effect,  none  the  less 
although  it  be  attended  by  such  wrongful  conduct  on  the  part  of  the 
deserting  party  as  would  naturally  forbid  his  being  received  again, 
while  unreformed,  to  matrimonial  cohabitation."  ^' 

Misconduct  of  the  Abandoned  Spouse. 

The  abandonment,  to  constitute  desertion,  even  where  there  is  no 
actual  consent,  must  be  unjustifiable.  If  either  spouse  is  guilty  of  such 
misconduct  as  to  justify  the  other  in  leaving,  the  latter's  absence  does 
not  amount  to  desertion.^*  "It  has  accordingly  been  declared,"  says 
the  Massachusetts  court,  "by  the  great  weight  of  American  authority, 
that  ill  treatment  or  misconduct  of  the  husband  of  such  a  degree  or 
under  such  circumstances  as  not  to  amount  to  cruelty  for  which  the 
wife  would  be  entitled  to  sue  for  a  divorce  against  him  might  yet  justi- 
fy her  in  leaving  his  house,  and  prevent  his  obtaining  a  divorce  for 
her  desertion  if  she  did  so."  *^ 

SAME— MISCELIiANEOUS  OTHER  GROUNDS. 

104.    Various  other  grounds  for  divorce  are  prescribed  by  tbe  statutes 
of   some    of   the    states.      Among   tliem.  may   be    mentioned: 

(a)  Habitual  drunkenness,  in  most  states. 

(b)  Conviction    of    crizne    and    imprisonment   under    certain    circum- 

stances, in  most   states. 

(c)  Incurable  insanity,  in  some   states. 

(d)  Separation  not  amounting  to  desertion,  in  a  ferv  states. 

(e)  Nonsupport,  under  certain  circumstances,  in  some  states. 

(f)  Where  the  other  party  has  obtained  a  divorce  in  another  state, 

in  some   states. 
■    (g)    Causes    rendering    marriage    void    or    voidable,    in    some    states; 
like     impotence,    relationship,     prior    marriage,    mental    inca- 
pacity, nonage,  fraud,  and  duress. 

85  Wagner  v.  Wagner,  39  Minn.  304,  40  N.  W.  3G0. 

8  6  Lyster  v.,Lyster,  111  Mass.  327;  Crounse  v.  Crounse  (Va.)  GO  S.  E.  627; 
Warner  v.  Warner,  54  Mich.  492,  20  N.  W.  557;  Hardiu  v.  Hardin,  17  Ala. 
250.  52  Am.  Dec.  170;  Gillinwaters  v.  Gillinwaters,  28  Mo.  60;  Neff  v.  Neff, 
20  Mo.  App.  182;  Weigand  v.  Weigand,  42  N.  J.  Eq.  609,  11  Atl.  113.  See 
the  cases  cited  in  note  03,  supra.  But  see  1  Bish.  Mar.,  Div.  &  Sep.  §  1748 
et  seq.,  where  it  is  contended  that  this  is  true  only  to  the  extent  that  such 
conduct  is.  evidence  of  consent,  and  bars  a  divorce  for  desertion  on  that 
ground. 

87  Lyster  v.  Lyster,  111  Mass.  327. 


208  SEPARATION  AND  DIVORCE.  (Ch.  7 

Adultery,  cruelty,  and  desertion  are  the  most  common  grounds  for 
a  divorce ;  and  they  are  the  only  grounds  of  which  the  size  and  scope 
of  this  work  will  permit  of  treatment  at  any  length.  It  may  be  well, 
however,  to  call  attention  to  the  fact  that  the  statutes  in  the  various 
states  have  made  numerous  other  acts  or  circumstances  grounds  for 
divorce,  and  to  mention  the  substance  of  these  statutes  shortly,  leav- 
ing the  student  to  consult  the  local  statutes  to  determine  the  grounds 
for  divorce  in  his  own  state. 

Habitual  Drunkenness,  etc. 

In  nearly  all  of  the  states  a  divorce  a  vinculo  matrimonii,  or  a  mensa 
et  thoro,  or  either,  at  the  option  of  the  injured  spouse,  may  be  granted 
for  "habitual  drunkenness,"  "gross  and  confirmed  habits  of  intoxica- 
tion," such  intoxication  as  renders  "living  together  insupportable,"  etc. 
The  language  of  the  statutes  differ,  but  they  mean  substantially  the 
same  thing.^^  Perhaps  under  none  of  the  statutes  will  a  divorce  be 
granted  unless  it  is  shown  that  the  habits  of  drunkenness  are  confirm- 
ed and  continued.^'  A  man  who  drinks  to  excess  may  be  an  habitual 
drunkard,  although  he  is  not  constantly  drunk,  but  there  are  intervals 
when  he  refrains  entirely  from  the  use  of  intoxicating  liquors.  The 
excessive  indulgence  in  intoxicating  drinks  as  a  fixed  habit  is  habitual 
dnmkenness.  Neither  occasional  drunkenness,®"  nor  the  habitual, 
but  moderate,  use  of  intoxicants,®^  will  constitute  a  ground  for  di- 
vorce. 

A  person  who  frequently  drinks  to  excess,  and  becomes  intoxicated 
whenever  the  temptation  is  presented  and  the  opportunity  is  afforded 
him,  is  an  habitual  drunkard,  within  the  meaning  of  the  statutes." 


88  stim.  Am.  St.  Law,  §  6206.  "Coutinned  drunkenness"  and  "habitual 
drunkenness"  mean  the  same  thing.  Gourlay  v.  Gourlay,  16  R.  I.  705,  19 
Atl.   142. 

80  Gourlay  v.  Gourlay,  16  R.  I.  705,  19  Atl.  142. 

»o  Rapp  V.  Rapp,  149  Mich.  21S,  112  N.  W.  7U9. 

91  Bain  v.  Bain  (Neb.)  113  N.  W.  141;  Schaub  v.  Schaub,  117  La.  727,  42 
South.  249. 

82  Walton  V.  Walton,  34  Kan.  195,  8  Pac.  110;  McBee  v.  McBee,  22  Or. 
329,  29  Pac.  887,  29  Am.  St.  Rep.  613;  Ludwick  v.  Com.,  18  Pa.  172;  State 
V.  Pratt,  34  Vt.  323;  Magahay  v.  Magahay,  35  Mich.  210;  Blaney  v.  Blaney, 
126  Mass.  205;  Mack  v.  Handy,  39  La.  Ann.  491,  2  South.  181;  De  Lesdernier  v. 
De  Lesdernier,  45  La.  Ann.  1304,  14  South.  191 ;  Williams  v.  Goss,  43  La.  Ann. 
868,  9  South.  750 ;  Golding  v.  Gelding,  0  Mo.  App.  602 ;  Brown  v.  Brown,  38  Ark. 
324;  Richards  v.  Richards,  39  111.  App.  465;  McGill  v.  McGill,  19  Fla.  341; 
Mahone  v.  Mahone,  19  CJal.  627,  81  Am.  Dec.  91.    "The  phrase  'habitual  in- 


§    104)  GROUNDS  FOR  DIVORCE.  209 

The  word  "drunkenness,"  or  the  word  "intoxication,"  is  used  in  the 
statute  in  its  ordinary  sense,  as  referring  to  the  effect  of  intoxicating 
liquors,  and  does  not  include  the  use  of  morphine  or  other  drugs, 
though  the  effect  of  their  use  is  similar." 

A  wife  cannot  set  up  habitual  drunkenness  if,  at  the  time  of  the 
marriage,  she  knew  that  the  habit  existed.'* 

Conviction  of  Crime  and  Imprisonment 

In  most  states  conviction  of  either  party  of  a  crime,  and  sentence 
to  imprisonment  in  the  state  prison,  is  declared  a  ground  of  divorce. 
In  some  states  no  time  of  sentence  is  prescribed,  while  in  others  the 
imprisonment  must  be  for  a  certain  number  of  years,  varying  in  the 
different  states,  and  in  some  it  must  be  for  life.  In  some  states  a 
divorce  may  be  granted  if  either  party  has  been  indicted  for  an  in- 
famous offense,  and  is  a  fugitive  from  justice;  in  some  he  must  have 
been  a  fugitive  for  a  prescribed  time.  In  some  states  conviction  of  a 
felony  or  infamous  crime  ®^  is  made  a  ground  for  divorce,  without 


temperance'  scarcely  requires  an  interpretation.  It  is  easily  understood. 
It  means  the  custom  or  liabit  of  getting  drunk;  the  constant  indulgence  In 
such  stimulants  as  wine,  brandy,  and  whisky,  whereby  intoxication  is  pro- 
duced ;  not  the  ordinary  use,  but  the  habitual  use  of  them.  The  habit 
should  be  actual  or  confirmed.  It  may  be  intermittent.  It  need  not  be 
continuous  or  even  of  daily  occurrence."  Mack  v.  Handy,  supra.  Though 
the  periods  of  a  husband's  intoxication  occurred  only  three  or  four  times 
a  year,  yet,  where  they  lasted  a  week  or  ten  days  at  a  time,  and  he  then 
became  grossly  intoxicated,  and  went  or  was  sent  to  an  inebriate  asylum, 
and  such  periods  had  occurred  for  twelve  or  fifteen  years,  he  was  held  to 
be  an  habitual  drvmkard.     Blaney  v.  Blauey,  supra. 

93  Youngs  V.  Youngs,  130  111.  230,  22  N.  E.  806,  6  L.  R.  A.  548,  17  Am.  St. 
Rep.  313,  aflirming  33  111.  App.  223.  And  see  Com.  v.  Whitney,  11  Cush. 
(Mass.)  477,  where  it  was  held  that  evidence  of  habitual  intoxication  from 
the  use  of  chloroform  would  not  sustain  a  criminal  charge,  under  a  statute,  of 
being  a  common  drunkard. 

94  Porritt  V.  Porritt,  10  Mich.  140;  Tilton  v.  Tilton,  29  S.  W.  200,  16  Ky. 
Law  Rep.  538;    Blaney  v.  Blaney,  126  Mass.  205. 

95  In  Wheeler  v.  WTieeler,  2  Fa.  Dist  R.  567,  it  was  held  that  assault 
with  intent  to  rape  was  not  an  "infamous"  crime,  within  the  meaning  of  the 
statute.  In  most  states,  however,  this  would  not  be  so;  but  all  offenses  are 
felonies  and  infamous  that  are  or  may  be  punishable  by  death  or  imprison- 
ment in  the  state  prison.  See  Clark,  Cr.  Law,  34 ;  Ex  parte  Wilson,  114  U. 
S.  417,  5  Sup.  Ct.  935,  29  L.  Ed.  89;  Mackin  v.  U.  S.,  117  U.  S.  348,  6  Sup. 
Ct.  777,  29  L,  Ed.  909;  U.  S.  v.  De  Walt,  128  U.  S.  393,  9  Sup.  Ct  111,  32 
L.  Ed.  485. 

TIFF.P.&  D.Rel.(2d  Ed.)— 14 


210  SEPARATION   AND  DIVORCE.  (Ch   7 

mentioning  imprisonment  or  sentence.  As  a  rule,  no  pardon  can  rC' 
store  the  guilty  party  to  his  marital  rights. °' 

In  some  states  the  statutes  extend  to  conviction  and  imprisonment 
in  another  state.®^  It  has  been  held  that,  unless  the  statute  expressly 
so  provides,  it  cannot  be  so  extended.®^  This,  however,  does  not  seem 
reasonable.  The  reasons  why  a  divorce  should  be  granted  are  as 
strong  where  the  imprisonment  and  conviction  are  without  the  state 
as  where  they  are  within  it. 

A  woman  cannot  knowingly  marry  a  felon  after  his  conviction,  and 
afterwards  set  up  such  conviction,  or  a  sentence  to  imprisonment  bas- 
ed thereon,  as  ground  for  divorce.  It  has  therefore  been  held  that 
since  a  woman  who  marries  a  man  who  has  been  convicted  of  a  crime, 
while  his  case  is  pending  on  exceptions  in  the  supreme  court,  must 
know  that  sentence  is  likely  to  follow  such  conviction,  a  subsequent 
sentence  can  be  no  ground  for  divorce. °' 

In  Wisconsin  a  statute  provides  that  a  sentence  of  imprisonment 
for  life  shall  dissolve  the  marriage  of  the  person  sentenced,  without 
any  judgment  of  divorce  or  other  legal  process;  and  there  are  similar 
statutes  in  other  states.  This,  however,  is  a  case  of  legislative  di- 
vorce.^ 

Insanity. 

In  the  absence  of  a  statute  expressly  allowing  it,  a  divorce  cannot 
be  granted  on  the  ground  of  the  other  party's  insanity.^  In  some 
states,  however,  statutes  have  been  enacted  entitling  a  party  to  a  di- 
vorce where  the  other  party  is  incurably  insane.' 

Grounds  Similar  to  Desertion — Nonsupport. 

In  a  few  states  either  party  may  obtain  a  divorce  where  they  have 
voluntarily  lived  entirely  separate  for  a  certain  length  of  time;    and 


86  Holloway  v.  Holloway,  126  Ga.  459,  55  S.  E.  191,  7  U  R,  A.  (N.  S.)  272, 
115  Am.  St.  Rep.  102. 

0  7  Frantz  v.  Frantz,  11  Pa.  Co.  Ct.  R.  467. 

»8  Leonard  v.  Leonard,  151  Mass.  151,  23  N.  E.  732,  6  L.  R.  A.  632,  21 
Am.   St.  Rep.  437;    Martin  v,  Martin,  47  N.  H.  53. 

9  9  Caswell  V.  Caswell,  64  Vt.  557,  24  Atl.  9SS,  33  Am.  St.  Rep.  943. 

1  Post,  p.  229. 

2  Pile  V.  Pile,  94  Ky.  308,  22  S.  W.  215 ;  Baughman  v.  Baughmao,  34  Pa. 
Super.  Ct.  271. 

3  As  to  sufficiency  of  insanity,  see  Hanbury  v.  Hanbury,  [1892]  Prob.  222. 
That  such  a  law  is  valid,  see  Hickman  t.  Hickman,  1  Wash.  St  257,  24  Pac. 
445,  22  Am.  St  Rep.  148. 


§    104)  GROUNDS  FOR  DIVORCE.  211 

in  some  states  a  divorce  may  be  granted  when  either  party  has  sep- 
arated from  the  other  without  his  or  her  consent,  and  joined  with  a 
reHgious  sect  or  society  that  professes  to  beHeve  the  marriage  rela- 
tion void  or  unlawful,  and  refused  to  cohabit  with  the  other.  In  a 
few  states  a  party  is  entitled  to  a  divorce  when  the  other  party  has 
obtained  a  divorce  in  another  state ;  *  and  in  some  a  divorce  may  be 
granted  for  disappearance  of  either  party,  and  absence  for  a  certain 
length  of  time  without  being  heard  of.  In  a  number  of  states,  failure 
of  the  husband  to  support  his  wife,  where  he  is  able  to  do  so,  is  made 
a  ground  for  divorce. ° 

Divorce  as  a  Substitute  for  Decree  of  Nullity. 

Nullity  suits — that  is,  suits  to  have  a  marriage  judicially  annulled 
for  causes  existing  at  the  time  it  was  entered  into,  and  rendering  it 
void  or  voidable — have  been  explained  in  treating  of  marriage,  and 
properly  so,  for  they  are  entirely  different  from  a  suit  for  divorce.  In 
case  of  a  decree  of  nullity  the  effect  is  not  to  dissolve  an  existing  mar- 
riage, but  to  declare  that  a  valid  marriage  has  never  existed.  A  suit 
for  a  divorce,  on  the  other  hand,  is  to  dissolve  a  marriage  that  is 
valid.  In  many  of  the  states  a  suit  for  divorce  has  been  substituted 
by  statute  for  the  remedy  by  suit  for  nullity,  or  else  has  been  made 
a  concurrent  remedy.  In  a  number  of  states,  by  statute,  a  divorce 
may  be  obtained  for  impotence  or  physical  incapacity  of  either  party 
existing  at  the  time  of  the  marriage ; «    or  because  the  marriage  is 

*  Van  Inwagen  v.  Van  Inwagen,  86  Mich.  333,  49  N.  W.  154. 

6  Lillie  V.  Lillie,  65  Vt  109,  26  Atl.  525;  Seigmuud  v.  Seigmund,  46  Wash. 
572,  90  Paa  913;  Caswell  v.  Caswell,  66  Vt.  242,  28  Atl.  988;  Runkle  v. 
Runkle,  96  Mich.  493,  56  N.  W.  2.  Under  a  statute  providing  that  the 
wife  may  have  a  divorce  when  the  husband,  being  of  "pecuniary  ability," 
without  cause  refuses  to  support  her,  and  construing  "pecuniai-y  ability" 
to  mean  ability  to  provide  for  a  wife,  either  from  labor,  income  of  prop- 
erty, or  otherwise.  It  was  held  that  a  wife  could  not  obtain  a  divorce  he- 
cause  her  husband,  being  able-bodied,  would  not  work,  and  had  therefore 
no  means,  and  could  not  support  her.  Jewett  v.  Jewett,  61  Vt.  370,  17  Atl. 
734.  And  see  Farnsworth  v.  Famsworth,  58  Vt.  555,  5  Atl.  401.  A  divorce 
was  refused  where  the  failure  of  the  husband  to  support  his  wife  was  due 
to  his  committal  to  prison  under  sentence;  the  statute  allowing  a  divorce 
for  "neglect  or  refusal  on  the  part  of  the  husband,  being  of  sufficient  ability, 
to  provide  necessaries  for  the  subsistence  of  his  wife."  Hammond  v.  Ham- 
mond, 15  R.  I.  40,  23  Atl.  143,  2  Am.  St.  Rep.  867. 

«  As  to  what  constitutes  impotence,  see  Payne  v.  Payne,  46  Minn.  467, 
49  N.  W.  230,  24  Am.  St.  Rep.  240.  "Physically  incapacitated,"  as  used  in 
the  statute,  Las  been  held  to  mean  "impotent"    Anon.,  89  Ala.  291,  7  South. 


212  SEPARATION  AND  DIVORCE.  (Ch.  7 

within  the  prohibited  degrees  of  relationship;  or  because  either 
party  was  already  married  to  another,^  or  was  non  compos  mentis, 
or  under  the  age  of  consent;  or  because  the  marriage  was  procured 
by  fraud  or  duress." 

Other  Grounds. 

Other  grounds  for  divorce  prescribed  by  statute  in  some  of  the 
states  are  "gross  misbehavior  and  wickedness  of  either  party  re- 
pugnant to  and  in  violation  of  the  marriage  contract";  "any  in- 
famous crime  involving  a  violation  of  conjugal  duty" ;  "any  gross 
neglect  of  duty" ;  •  commission  of  buggery  either  before  or  after 
the  marriage;  when,  unknown  to  the  husband,  the  wife  had  been 
guilty  of  fornication  before  the  marriage,  or  was  pregnant  by  an- 
other man,  or  was  a  prostitute,  or  was  matrimonially  incapacitat- 
ed.^" So,  on  the  other  hand,  the  wife  is  entitled  to  a  divorce  in 
some  states  where  the  husband,  unknown  to  the  wife,  was  a  noto- 
riously licentious  person  at  the  time  of  the  marriage. 

In  several  states  there  is  a  general  clause  in  the  statute  which  al- 
lows  the   courts   a   very  wide   discretion   in   granting  divorces.      In 

100,  7  L.  R.  A.  425,  18  Am.  St.  Rep.  116.  It  has,  however,  been  considered 
a  broader  term  than  "impotent."  Thus,  a  woman  who  was  afflicted  with 
chronic  syphilis  was  held  physically  incapacitated.  Ryder  v.  Ryder,  66  Vt. 
158,  28  Atl.    1029,   44  Am.    St.   Rep.   833.     For  other  instances  of   physical 

incapacity,  see  Mutter  v.  Mutter,  123  Ky.  754,  97  S.  W.  393;    S v,  S , 

192  Mass.  194,  77  N.  E.  1025,  116  Am,  St.  Rep.  240.  Impotence,  to  au- 
thorize a  divorce,  must  be  incurable,  or,,  being  curable,  the  party  must  re- 
fuse to  submit  to  treatment.  Griffith  v.  Griffith,  55  111.  App.  474.  As  to 
the  effect  of  impotence  on  the  validity  of  a  marriage,  and  suits  for  nul- 
lity, see  ante,  pp.  26,  38. 

7  See  Ralston  v.  Ralston,  2  Pa.  Dist.  R.  241. 

8  One  who  claims  to  have  been  fraudulently  induced  to  marry  by  the 
representations  of  the  woman  that  she  was  pregnant  by  illicit  intercourse 
indulged  in  by  them,  but  failed  to  show  that  he  was  deceived  thereby,  is 
not  entitled  to  a  divorce  uiider  a  statute  allowing  a  divorce  "where  the  al- 
leged marriage  was  procured  by  fraud,  force,  or  coercion,  and  has  not  been 
subsequently  confirmed  by  the  acts  of  the  parties."  Todd  v.  Todd,  149  Pa. 
60,  24  Atl.  128,  17  L.  R.  A.  320. 

9  ^^'here  the  wife  has  refused  for  more  than  five  years  to  cohabit  with 
her  husband  as  his  wife,  or  to  perform  any  of  her  household  duties,  her 
conduct  is  "gross  neglect  of  duty,"  within  the  meauing  of  the  statute- 
Leach  V.  Leach,  46  Kan.  724,  27  Pac.  131. 

10  Pregnancy  at  the  time  of  the  marriage,  unknown  to  the  husband,  who 
had  had  no  intercourse  with  her,  is  "matrimonial  incapacity."  Caton  v. 
Caton,  6  Mackey  (D.  C.)  309. 


§    105)  DEFENSES.  213 

Washington  the  statute  allows  a  divorce  "for  any  other  cause  deem- 
ed by  the  court  sufficient,  if  satisfied  that  they  [the  parties]  can 
no  longer  live  together."  In  Connecticut  a  divorce  could  formerly 
be  granted  "for  any  such  misconduct  as  permanently  destroys  the 
happiness  of  the  petitioner,  and  defeats  the  purpose  of  the  marriage 
relation";  but  this  clause  has  been  repealed.  In  Wisconsin  a  di- 
vorce may  be  allowed  "when,  by  reason  of  his  conduct  towards  her 
being  such  as  to  render  it  improper  for  her  to  live  with  him,  the 
court  are  of  opinion  that  it  will  be  discreet  and  proper  to  grant  the 
divorce,"  In  Arizona  a  divorce  could  formerly  be  granted  "when 
the  case  is  within  the  reason  of  the  law,  within  the  general  mis- 
chief the  law  is  intended  to  remedy,  or  within  what  it  may  be  pre- 
sumed the  Legislature  establishing  the  foregoing  causes  would  have 
provided  against  had  they  foreseen  the  specific  case";  but  this  pro- 
vision seems  to  be  no  longer  in  operation.  In  Florida  a  divorce  is 
allowed  "for  the  habitual  indulgence  of  a  violent  and  ungovernable 
temper." 

DEFENSES—CONNIVANCE. 

105.  Connivance  is  the  corrupt  consenting  by  one  sponse  to  an  of- 
fense by  the  other,  and  will  bar  a  suit  for  divorce  for  snch 
offense. 

It  is  the  well-settled  rule,  and  one  which  the  courts  are  frequent- 
ly called  upon  to  apply,  that,  if  either  spouse  consents  to  conduct 
on  the  part  of  the  other  which  would  ordinarily  constitute  a  ground 
for  divorce,  he  or  she  will  be  held  to  have  connived  at  such  conduct, 
and,  on  the  principle,  volenti  non  fit  injuria,  will  not  be  heard  to 
complain  of  it  as  a  ground  for  divorce."  This  is  expressly  declared 
by  the  statute  in  many  states.  Where  it  is  not  so  declared,  it  is 
nevertheless  recognized  as  the  law,  for  it  was  the  law  of  the  English 
ecclesiastical  courts,  and  it  is  to  be  assumed  that  the  Legislature  in- 
tended to  adopt  the  general  principles  by  which  those  courts  were 
governed,  in  so  far  as  they  are  applicable  and  reasonable. ^=^ 

On  this  principle   a   husband's  connivance   at  his   wife's  adultery 

11  Porster  v.  Forster,  1  Hagg.  Consist.  146;  Rogers  v.  Rogers,  3  Hagg. 
Ecc,  57;  Anichini  v.  Anichini,  2  Curt.  Ecc.  210;  Morrison  v.  Morrison,  136 
Mass.  310;  Id.,  142  Mass.  361,  8  N.  E.  59,  56  Am.  Rep.  688;  Myers  v.  Myers, 
41  Barb.  (N.  Y.)  114;    Bourgeois  v.  Cliauvin,  39  La.  Ann.  216,  1  South.  679. 

12  Morrison  v.  Morrison,  142  Mass.  3G1,  8  N.  E.  59,  56  Am.  Rep.  688. 


214  SEPARATION  AND  DIVORCE.  (Ch.  7 

has  frequently  been  held  a  complete  bar  to  a  divorce  for  the  par- 
ticular act  of  adultery  connived  at,^^  or  for  subsequent  acts  either 
with  the  same  person  or  with  another.^*  "If  he  has  relaxed  with 
one  man,  he  cannot  complain  of  another."  ^"^ 

This  harsh  rule  has  been  disapproved  in  some  more  recent  cases. 
Since  "the  iniquity  which  deprives  a  suitor  of  a  right  of  justice  in 
a  court  of  equity  is  not  general  iniquitous  conduct,  unconnected 
with  the  matter  in  suit,  but  evil  practice  or  wrongful  conduct  in  the 
particular  matter  or  transaction  in  respect  to  which  judicial  protec- 
tion or  redress  is  sought,"  ^®  it  has  been  held  that  connivance  by  a 
husband  at  his  wife's  adultery  is  no  bar  to  a  suit  for  a  divorce  on 
the  ground  of  other  acts  of  adultery  committed  by  her  without  his 
connivance.^  ^  But  it  was  said  by  the  Massachusetts  court  that  "the 
character  of  the  connivance,  under  some  circumstances,  may  be  so 
open,  gross,  and  revolting  that  the  court  may  find  that  no  injury 
has  been  done  the  husband,  and  that,  therefore,  there  is  nothing  to 
redress ;  that  the  husband  has  entirely  abandoned  all  right  to  claim 
that  his  wife  should  be  chaste;  and  that  he  has  thus  consented  to 
her  prior  adultery.  He  may  come  before  the  court  with  such  impure 
hands  that,  upon  the  soundest  considerations  of  public  policy,  his 
divorce  should  be  refused."  ^* 

To  constitute  connivance,  it  is  not  necessary  that  there  be  any 
active  procurement  of  the  wrongful  act.  Passive  and  permissive 
conduct  is  sufficient.  "I  have  no  difficulty,"  said  Lord  Stowell,  "in 
saying  that  passive  conduct  is  as  much  a  bar  as  active  conspiracy."  ^* 

13  Delaney  v.  Delaney  (N.  J.)  65  Atl.  217,  reversing  69  N.  J.  Eq.  602,  61 
Atl.  266;  Armstrong  v.  Armstrong,  45  Misc.  Rep.  260,  92  N.  Y.  Supp.  165; 
Pierce  v.  Pierce,  20  Mass.  (3  Pick.)  299,  15  Am.  Dec.  210. 

1*  Gipps  V.  Gipps,  3  Swab.  &  T.  116;  Lrovering  v.  Lovering,  3  Hagg.  Ecc. 
S5;  Hedden  v.  Hedden,  21  N.  J.  Eq.  61;  Woodward  v.  Woodward,  41  N.  J. 
Eq.   224,  4  Atl.  424. 

IB  Lovering  v.  Lovering,  3  Hagg.  Ecc.  85. 

16  Woodward  v.  Woodward,  41  N.  J.  Eq.  224,  4  Atl.  424,  citing  1  Pom. 
Eq.  Jur.  §  399. 

17  Woodward  v.  Woodward,  41  N.  J.  Eq.  224,  4  Atl.  424;  Morrison  v.  Mor 
rison,  142  Mass.  361,  8  N.  E.  59,  56  Am.  Rep.  688 ;  Viertel  v.  Viertel,  99  Mo 
App.  710,  75  S.  W.  187. 

18  Morrison  v.  Morrison,  142  Mass.  361,  8  N.  E.  59,  56  Am.  Rep.  688. 

19  Moorsom  v.  Moorsom,  3  Hagg.  Ecc.  87,  107.  And  see  Rogers  v.  Rogers, 
Id.  57;  Rix  v.  Rix,  Id.  74;  Boulting  v.  Boulting,  3  Swab.  &  T.  329;  Cairns 
V.  Cairns,  109  Mass.  408;  Morrison  v.  Morrison,  136  Mass.  310;  Bourgeois  v. 
Ohauvin,  39  La.  Ann.  216,  1  Soutb.  679. 


§    105)  DEFENSES.  215 

Where  the  conduct  of  the  husband  "indicates  an  intention  to  have 
his  wife  transgress,  or  at  least  an  intention  to  allow  her  to  do  so, 
undisturbed  and  unprevented,"  this  amounts  to  connivance. 2° 

There  must  be,  however,  consent  amounting  to  a  corrupt  intention 
to  constitute  connivance.  "Passive  acquiescence  would  be  sufficient 
to  bar  the  husband,  providing  it  appeared  to  be  done  with  the  inten- 
tion and  in  the  expectation  that  she  would  be  guilty  of  the  crime ;  but, 
on  the  other  hand,  it  has  always  been  held  that  there  must  be  a  con- 
sent. The  injury  must  be  volenti ;  it  must  be  something  more  than 
mere  negligence,  than  mere  inattention,  than  overconfidence,  than 
dullness  of  apprehension,  than  mere  indifference.  It  must  be  inten- 
tional concurrence  in  order  to  amount  to  a  bar."  ^^  If  a  husband  who 
has  reason  to  suspect  his  wife  of  adultery  merely  does  nothing  to 
prevent  a  recurrence  of  the  act,  and  takes  steps  to  obtain  proof,  there 
is  no  connivance.^^  But  the  law  does  not  allow  temptation  to  be 
placed  in  a  wife's  way  in  order  that  advantage  may  be  taken  of  the 
consequences.^'  "A  husband  is  not  barred  by  mere  permission  of  op- 
portunity for  adultery,  nor  is  it  every  degree  of  inattention  which 
will  deprive  him  of  relief,  but  it  is  one  thing  to  permit  and  another  to 
invite."  ^*  A  husband  who  endeavors  to  procure  his  wife  to  be  lured 
into  an  act  of  adultery  consents  to  it.^^ 

20  Bourgeois  v.  Cbauvin,  39  La.  Ann.  216,  1  South.  679;  Viertel  v.  Viertel, 
86  Mo.  App.  494. 

21  Rogers  V.  Rogers,  3  Hagg.  Ecc.  57;  Rix  v.  Rix,  Id.  74;  Boulting  v.  Boult- 
ing,  3  Swab.  &  T.  329;  Marris  v.  Harris,  2  Swab.  &  T.  530 ;  Glennie  v.  Glen- 
nie,  8  Jur.  (N.  S.)  1158;  Gipps  v.  Gipps,  11  H.  L.  Cas.  1;  Phillips  v.  Phillips, 
1  Rob.  Ecc.  144;  Cochran  v.  Cochran,  35  Iowa,  477;  Welch  v.  Welch,  50  Mo. 
App.  395. 

22  Timmings  v.  Timmings,  3  Hagg.  Ecc.  76;  Reiersen  v.  Reiersen,  32  App. 
Div.  62,  52  N.  Y.  Supp.  509;  Robbius  v.  Robbins,  140  Mass.  528,  5  N.  E. 
837,  54  Am.  Rep.  488;  Pettee  v.  Pettee,  77  Hun,  595,  28  N.  Y.  Supp.  10G7 ; 
Wilson  V.  Wilson,  154  Mass.  194,  28  N.  E.  167,  12  L.  R.  A.  524,  26  Am.  St. 
Rep.  237. 

2  3  Viertel  v.  Viertel,  86  Mo.  App.  494;  Noyes  v.  Noyes,  194  Mass.  20,  79  N. 
E.  814,  120  Am.  St.  Rep.  517. 

2  4  Timmings  v.  Timmings,  3  Hagg.  Ecc.  76;  Harris  v.  Harris,  2  Hagg.  Ecc. 
376. 

26  Woodward  v.  Woodward,  41  N.  J.  Eq.  224,  4  Atl.  424. 


216  SEPARATION  AND   DIVORCE.  (Ch.  7 

SAME— COI^IiUSION. 

106.  Collusion  is  any  agreement  between  tlie  parties  -whereby  tbey 
seek  to  obtain  a  divorce  by  an  imposition  on  the  court,  and 
is  ground  for  refusing  relief. 

In  no  case  will  a  divorce  be  granted  if  it  appears  that  there  is  col- 
lusion between  the  parties,  even  though  it  may  appear  that  there  is 
a  valid  cause  for  the  divorce.  Any  agreement  between  husband  and 
wife  by  which  they  are  to  endeavor  to  obtain  a  divorce  by  imposing 
upon  the  court  is  collusion,  within  the  meaning  of  this  rule.^' 

It  is  clearly  collusion  for  the  parties  to  agree  that  one  of  them  shall 
institute  a  suit  for  divorce  for  a  cause  which  does  not  exist,  although 
they  may  have  some  other  ground.^^  It  is  also  collusion  for  them  to 
agree  to  suppress  facts  which  are  pertinent  and  material ;  ^*  or  to  in- 
stitute a  suit  for  divorce  in  pursuance  of  an  understanding  whereby 
one  of  them  has  committed  some  offense,  such  as  adultery,  for  the 
purpose  of  affording  ground  for  a  divorce.'^*  And,  in  general,  it  is 
collusion  for  the  parties  to  act  in  concert  in  the  conduct  of  the  suit, 
even  though  there  may  be  a  valid  ground  for  divorce."*  But  the  hus- 
band may  make  the  wife  a  reasonable  allowance  while  the  suit  is 
pending,  in  order  to  save  the  expense  of  an  application  for  alimony.^ ^ 
Collusion  implies  action  in  concert.  There  is  no  collusion,  therefore, 
where  one  party  takes  advantage  of  a  matrimonial  offense  by  the 
other  as  a  ground  for  divorce,  though  the  offense  was  committed  by 
the  other  in  the  desire,  and  with  the  hope  and  expectation,  that  such 
advantage  would  be  taken  of  it.     In  other  words,  the  fact  that  one 

26  Griffiths  V.  Griffiths,  69  N.  J.  Eq.  689,  60  Atl.  1090;  Branson  v.  Branson, 
76  Neb.  780,  107  N.  W.  1011. 

27  Butler  V.  Butler,  15  Prob.  Div.  13,  32,  66;  Jessop  v.  Jessop,  2  Swab.  & 
T.  301;  Stokes  v.  Anderson,  118  Ind.  533,  21  N.  E.  331,  4  L.  R.  A.  313. 

2  8  Hunt  V.  Hunt,  47  Law  J.  Prob.  Div.  &  Adin.  22;  Barnes  v.  Barnes,  L. 
R.  1  Prob.  &  Div.  505 ;  Jessop  v.  Jessop,  2  Swab.  &  T.  301.  It  is  collusion  to 
suppress  evidence  of  a  valid  defense.  Griffiths  v.  Griffiths,  69  N.  J.  Eq.  689, 
60  AU.  1090. 

29  Todd  V.  Todd,  L.  R.  1  Prob.  &  Div.  121 ;  Crewe  v.  Crewe,  3  Hagg.  Ecc. 
123. 

30  Uoyd  V.  Lloyd,  1  Swab.  &  T.  567.  But  see  Harris  v.  Harris,  4  Swab. 
&  T.  232.  Agreements  intended  merely  to  facilitate  the  divorce  proceedings 
do  not  show  collusion.    Dodge  v.  Dodge,  98  App.  Div.  85,  90  N.  Y.  Supp.  438. 

31  Barnes  v.  Barnes,  L.  R.  1  Prob.  &  Div.  505;  In  re  Ellis'  Estate,  55  Minn. 
401,  56  N.  W.  1056,  23  L.  R.  A.  287,  43  Am.  St.  Rep.  514. 


§§    107-108)  DEFENSES.  217 

party  commits  an  offense,  such  as  adultery  or  desertion,  for  the  pur- 
pose of  affording  the  other  grounds  for  divorce,  does  not  bar  the  oth- 
er's right  to  a  divorce,  if  the  other  did  not  act  in  concert  to  afford  such 
ground.^'' 

SAME— CONDONATION. 

107.  Condonation  is  tlie  forgiveness  of  a  marital  offense  constituting 

a  ground  for  divorce,  and  bars  the  right  to  a  divorce.  But 
condonation  is  on  the  condition,  implied  by  laxsr  ivhen  not 
express,  that  the  wrongdoer  shall  not  again  commit  that  of- 
fense, and  also  that  he  shall  thereafter  treat  the  other  with 
"conjugal  kindness";  and  a  breach  of  the  condition  ivill  re- 
vive the  original  offense  as  a  ground  for  divorce. 

108.  Condonation  may  be  by  express  words,  if  acted  upon;    or  it  may 

be  inferred  from  conduct  alone. 

The  forgiveness  or  remission  by  one  of  the  spouses  of  a  marital  of- 
fense committed  by  the  other  is,  in  law,  such  a  condonation  of  the  of- 
fense as  will  bar  a  suit  for  divorce  therefor.^^  This  doctrine  not  only 
applies  to  adultery,  but  it  also  applies  to  cruelty,  and  to  every  other 
offense  that  constitutes  a  ground  for  divorce.'* 

Forgiveness  Conditional. 

Condonation  is  always  conditional.  When  the  condition  is  not 
expressed,  the  law  implies  a  condition,  not  only  that  the  particular 
offense  shall  not  be  repeated,^^  but  also  that  the  offender  shall  treat 
the  other  with  "conjugal  kindness."  "     A  breach  of  this  condition 

3  2  Shaw  V.  Gould,  L.  R.  3  H.  L.  55 ;  Crewe  v.  Crewe,  3  Hagg.  Ecc.  123; 
Utterton  v.  Tewsh,  Ferg.  Const.  23;  Kibblewhite  v.  Rowland,  Id.  226. 

3  3  Durant  v.  Durant,  1  Hagg.  Ecc.  733;  Wcstmeath  v.  Westmeath,  2  Hagg. 
Ecc.  Supp.  1 ;  Ferrers  v.  Ferrers,  1  Hagg.  Const.  130;  D'Aguilar  v.  D'Aguilar, 
1  Hagg.  Ecc.  773;  Sewall  v.  Sewall,  122  Mass.  156,  23  Am.  Rep.  299 ;  Cumming 
V.  dimming,  135  Mass.  386,  46  Am.  Rep.  476 ;  Johnson  v.  Johnson,  14  Wend. 
(N.  Y.)  637;  Quincy  v.  Quincy,  10  N.  H.  272;  Turnbull  v.  Turnbull,  23  Ark. 
615. 

34  Gardner  v.  Gardner,  2  Gray  (Mass.)  434 ;  Clague  v.  Clague,  46  Minn.  461, 
49  N.  W.  198;  McGurk  v.  SIcGurk  (N.  J.  Ch.)  28  Atl.  510;  Sullivan  v.  Sullivan, 
34  Ind.  368;  Phillips  v.  Phillips,  27  Wis.  252;  Nogees  v.  Nogees,  7  Tex.  538, 
58  Am.   Dec.   78. 

8  5  Durant  v.  Durant,  1  Hagg.  Ecc.  733;  Nogees  v.  Nogees,  7  Tex.  538,  58 
Am.  Dec.  78;  Sewall  v.  Sewall,  122  Mass.  156,  23  Am.  Rep.  299. 

36  "The  plainer  reason  and  good  sense  of  the  implied  condition  is  'that 
you  shall  not  only  abstain  from  adultery  but  shall  in  future  treat  me — in 


218  SEPARATION  AND  DIVORCE.  (Ch.  7 

will  revive  the  original  offense  as  a  ground  for  divorce,  and  it  may  be 
relied  upon  for  this  end  just  as  fully  as  if  it  had  never  been  con- 
doned.^ ^  A  condoned  offense,  whatever  it  may  be,  is  therefore  re- 
vived if  the  wrongdoer  is  subsequently  guilty  of  adultery,  cruelty,  de- 
sertion, or  any  other  breach  of  "conjugal  kindness."  *®  Acts  of  cruelty 
will  revive  a  condoned  offense,  even  though  they  may  not  themselves 
be  sufficient  as  a  ground  for  divorce ;  and  the  same  must  be  true  of 
desertion  for  less  than  the  period  required  to  make  it  a  ground  for 
divorce.^*  It  was  said  in  a  Massachusetts  case:  "The  law  is  settled 
in  this  commonwealth,  in  accordance  with  the  doctrine  declared  by 
Lord  Stowell  and  Sir  John  Nicholl  in  the  English  ecclesiastical  courts, 
that  any  condonation  by  the  wife  of  her  husband's  cruelty  is  on  the 
implied,  if  not  express,  condition  of  his  treating  her  in  the  future  with 
conjugal  kindness;  that  any  breach  of  this  condition  will  revive  the 
right  to  maintain  a  libel  for  the  original  offense ;  and  that  such  a 
breach  may  be  shown  by  act,  word,  or  conduct  which  would  not  of 
themselves  prove  a  cause  of  divorce.     Harshness  and  rudeness  not 


every  respect  treat  me  [to  use  the  words  of  the  law] — with  conjugal  kind- 
ness. On  this  condition  I  will  overlook  the  past  injuries  you  have  done  me.'  " 
Durant  v.  Durant,  1  Hagg.  Ecc.  743.  And  see  Westmeath  v.  Westmeath,  2 
Hagg.  Ecc.  Supp.  1,  114;  Johnson  v.  Johnson,  14  Wend.  (N.  Y.)  637;  Farnham 
V.  Farnham,  73  111.  497;  Warner  v.  Warner,  31  N.  J.  Eq.  225;  Atherton  v. 
Atherton,  82  Hun,  179,  31  N.  Y.  Supp.  977;  Shackleton  v.  Shackleton,  48  N. 
J.  Eq.  364,  21  Atl.  935,  27  Am.  St.  Rep.  478 ;  Nogees  v.  Nogees,  7  Tex.  538,  58 
Am.  Dec.  78 ;  Robbins  v.  Robbins,  100  Mass.  150,  97  Am.  Dec.  91. 

3  7  Cases  cited  supra  and  infra. 

ssworsley  v.  Worsley,  cited  in  1  Hagg.  Ecc.  734,  2  Lee,  Ecc.  572;  Durant 
V.  Durant,  1  Hagg.  Ecc.  733;  D'Aguilar  v.  D'Aguilar,  Id.  773;  Bramwell  v. 
Bramwell,  3  Hagg.  Ecc.  618;  Dent  v.  Dent,  4  Swab.  &  T.  105;  Newsome  v. 
Newsome,  L.  R.  2  Prob.  &  Div.  313;  Warner  v.  Warner,  31  N.  J.  Eq.  225; 
Farnham  v.  Farnham,  73  111.  497;  Odom  v.  Odom,  36  Ga.  286;  Johnson  v. 
Johnson,  14  Wend.  (N.  Y.)  637;  Timerson  v.  Timerson,  2  How.  Prac,  N.  S.  (N. 
Y.)  526;  Mosher  v.  Mosher,  16  N.  D.  269,  113  N.  W.  99,  12  L.  R.  A.  (N.  S.) 
820;  Cozard  v.  Cozard,  48  Wash.  124,  92  Pac.  935;  Copsey  v.  Copsey,  74  Law. 
J.  Prob.  40,  [1905]  Prob.  94,  91  Law  T.  363,  20  Times  Law  R.  728.  But  com- 
pare Bromi  V.  Brown,  129  Ga.  246,  58  S.  E.  825,  holding  that,  where  acts 
of  cruelty  have  been  condoned,  such  acts  will  not  be  revived  as  ground  for 
divorce,  except  by  fresh  acts  of  cruelty. 

3  9  Durant  v.  Durant,  1  Hagg.  Ecc.  743;  D'Aguilar  v.  D'Aguilar,  Id.  773; 
Bramwell  v.  Bramwell,  3  Hagg.  Const.  618;  Farnham  v.  Farnham,  73  111. 
497;  Warner  v.  Warner,  31  N.  J.  Eq.  225;  Threewits  v.  Threewits,  4  Desaus. 
Eq.  (S.  C.)  560 ;  Marshall  v.  Marshall,  65  Vt  238,  26  Atl.  900;  Robbins  v.  Rob- 
bins, 100  Mass.  150,  97  Am.  Dec  91. 


i?§   107-108)  DEFENSES.  219 

sufficient  to  maintain  a  libel  may  receive  a  different  interpretation 
and  effect  upon  the  question  of  condonation  after  proof  that  the  hus- 
band has  previously  gone  to  the  length  of  positive  acts  of  cruelty."  *° 

What  Amounts  to  Condonation. 

Condonation  may  be  by  express  words  of  forgiveness ;  **  but  an 
offer  to  forgive  will  not  amount  to  condonation,  unless  it  is  accepted 
or  acted  upon  by  the  other  party.* ^  Condonation  may  also  be  im- 
plied from  the  conduct  of  the  parties,  without  proof  of  express  for- 
giveness, and  even,  it  seems  from  some  of  the  cases,  though  it  could 
be  shown  that  there  was  no  forgiveness  in  fact.  Sexual  intercourse, 
for  instance,  with  knowledge  of  a  prior  offense,  is  such  condona- 
tion.*' Voluntary  cohabitation,  also,  is  generally  held  to  be  proof  of 
condonation ;  **  but  condonation  will  not  necessarily  be  implied  from 
the  fact  that  the  husband  and  wife  continued  to  live  together  if 
there  was  no  sexual  intercourse.*"*     Sexual  intercourse  will  be  pre- 


*o  Robbins  v.  Robbing,  100  Mass.  150,  97  Am.  Dec.  91. 

41  Beeby  v.  Beeby,  1  Hagg.  Ecc.  789;  Quincy  v.  Quincy,  10  N.  H.  272. 

42  Keats  V.  Keats,  1  Swab.  &  T.  334;  Popkin  v.  Popkin,  1  Hagg.  Ecc.  765, 
note ;  Ferrers  v.  Ferrers,  Id.  781,  note;  Quarles  v.  Quarles,  19  Ala.  363 ;  Wolff 
V.  Wolff,  102  Cal.  433,  36  Pac.  767,  1037. 

4  3  Snow  V.  Snow,  2  Notes  of  Cas.  Supp.  13 ;  Dillon  v,  Dillon,  3  Curt.  Ecc. 
86;  Timmings  v.  Timmings,  3  Hagg.  Ecc.  76;  Rogers  v.  Rogers,  67  N.  J.  Eq. 
534,  58  Atl.  822;  Pitts  v.  Pitts,  52  M.  Y.  593;  Quincy  v.  Quincy,  10  N.  H.  272, 
274;  Doe  v.  Doe,  52  Hun,  405,  5  N.  Y.  Supp.  514;  Burns  v.  Burns,  60  Ind. 
259;  Thomas  v.  Thomas,  2  Cold.  (Tenn.)  123;  Farmer  v.  Farmer,  86  Ala.  322, 

5  South.  434 ;  Sparks  v.  Sparks,  94  N.  O.  527 ;  Eggerth  v.  Eggerth,  15  Or.  626, 
16  Pac.  650;  Auld  v.  Auld  (Super.  N.  Y.)  16  N.  Y.  Supp.  803;  Tiltou  v.  Tilton, 
29  S.  W.  290,  16  Ky.  Law  Rep.  538;  Shackleton  v.  Shackleton,  48  N.  J.  Eq. 
.364,  21  Atl.  935,  27  Am.  St.  Rep.  478.  But  see  Bohnert  v.  Bohnert,  95  Cal. 
444,  30  Pac.  590,  where  it  was  held  that  a  single  act  of  sexual  intercourse 
after  the  commencement  of  a  suit  for  a  divorce  for  adultery  was  not  alone 
sufficient  to  constitute  condonation.     See  Hall  v.  Hall,  60  Law  J.  Prob.,  Div. 

6  Adm.  73. 

4  4  Beeby  y.  Beeby,  1  Hagg.  Ecc.  789;  Johnson  v.  Johnson,  14  Wend.  (N, 
Y.)  637;  Anon.,  6  Mass,  147;  Clague  v.  Clague,  46  Minn.  461,  49  N.  W.  198; 
Nullmeyer  v.  Nullmeyer,  49  HT.  App.  573;  Land  v.  Martin,  46  La.  Ann.  1246, 
15  South.  657;  McGurk  v.  McGurk  (N.  J.  Ch.)  28  Atl.  510. 

4  6  Dance  v.  Dance,  1  Hagg.  Ecc.  794,  note;  Westmeath  v.  Westmeath,  2 
Hagg.  Ecc.  Supp.  1 ;  Guthrie  v.  Guthrie,  26  Mo.  App.  566 ;  Harnett  v.  Harnett, 
59  Iowa,  401,  13  N.  W.  408 ;  Jacobs  v.  Tobelman,  36  La.  Ann.  842;  Denison  v. 
Denison,  4  Wash.  St.  705,  30  Pac,  1100;  Lindsay  v.  Lindsay,  226  111.  309,  80 
N.  a  876. 


220  SEPARATION  AND  DIVORCE.  (Ch.  7 

sumed  where  the  husband  and  wife  are  living  together,  but  such  pre- 
sumption may  be  rebutted.*® 

Because  of  the  dependent  position  of  the  wife,  condonation  will 
not  be  so  readily  inferred  from  conduct  against  her  as  it  would  be 
against  the  husband.*^ 

Same — Knowledge  of  Offense. 

Condonation  necessarily  implies  knowledge  of  the  oflTense  com- 
mitted,. Conduct,  as,  for  instance,  continued  cohabitation  and  inter- 
course, cannot  be  construed  as  condonation  if  there  was  no  knowl- 
edge of  the  offense  claimed  to  have  been  condoned.*^  Mere  sus- 
picion is  not  knowledge.  Cohabitation  under  circumstances  which 
might  excite  suspicion  merely,  but  without  actual  knowledge,  is  not 
condonation.*®  That  a  wife  retains  confidence  in  her  husband,  or  a 
husband  in  his  wife,  notwithstanding  rumors  of  his  or  her  adultery, 
and  circumstances  tending  to  show  that  they  may  be  true,  ought  not 
to  be  treasured  up  and  relied  upon  as  condonation. "^  Forgiveness  of 
one  act  is  not  forgiveness  of  other  unknown  acts ;  but,  when  the 
terms  of  the  forgiveness  are  general,  it  is  not  necessary  that  there 
should  be  actual  knowledge  of  each  distinct  offense.^* 


48  Beeby  v.  Beeby,  1  Hagg.  Ecc.  789 ;  Snow  v.  Snow,  2  Notes  of  Cas.  Supp. 
1,  13;  Burns  v.  Burns,  60  Ind.  259;  Phelps  v.  Phelps,  28  App.  D.  C.  577. 

47  D'Aguilar  v.  D'Aguilar,  1  Hagg.  Ecc.  773;  Beeby  v.  Beeby,  Id.  789;  Kirk- 
wall V.  Kirkwall,  2  Hagg.  Const  277;  Gardner  v.  Gardner,  2  Gray  (Mass.) 
434;  Wood  v.  Wood,  2  Paige  (N.  Y.)  108;  Bowie  v.  Bowie,  3  Md.  Ch.  51; 
Armstrong  v.  Armstrong,  32  Miss.  279;  Home  v.  Home,  72  N.  C.  531;  Cochran 
V.  Cochran,  35  Iowa,  477 ;  Shackleton  v.  Shackleton,  48  N.  J.  Eq.  364,  21  Ati. 
935,  27  km.  St.  Rep.  478;  Clague  v.  Clague,  46  Minn.  461,  49  N.  W.  198. 

4  8  Durant  v.  Dnrant,  1  Hagg.  Ecc.  733;  Bramwell  v.  Bramwell,  3  Hagg. 
Const.  629 ;  Anon.,  6  Mass.  147 ;  Rogers  v.  Rogers,  122  Mass.  423 ;  Delliber  v. 
Delliber,  9  Conn.  233;  Odom  v.  Odom,  36  Ga.  286. 

4  8  Quincy  v.  Quincy,  10  N.  H.  272;  Poison  v.  Poison,  140  Ind.  310,  39  N. 
E.  498;  Shackleton  v.  Shackleton,  48  N.  J.  Eq.  364,  21  Atl.  935,  27  Am.  St 
Rep.  478;  Welch  v.  W^elch,  50  Mo.  App.  395. 

60  Poison  V.  Poison,  140  Ind.  310,  39  N.  B.  498. 

61  Rogers  V.  Rogers,  122  Mass.  423;  Shackleton  v.  Shackleton,  48  N.  J.  Eq. 
364,  21  AU.  935,  27  Am.  St  Rep.  478. 


§    109)  DEFENSES.  221 

SAME— RECBIMIXATION. 

108.  Beorimination  is  a  conntercliarge  in  a  suit  for  divorce  that  the 
complainant  lias  been  guilty  of  an  ofEense  constituting  a 
gi'ound  for  divorce.  Adultery  is  universally,  and  any  conduct 
Tirhicli  is  ground  for  divorce  is  in  most  states,  a  complete  bar 
to  a  divorce  \rhen  set  up  in  recrimination. 

In  most  states  it  is  a  good  defense  in  a  suit  for  divorce  that  the 
complainant  has  been  guilty  of  any  conduct  which'  constitutes  a 
ground  for  divorce.  This  is  the  doctrine  of  recrimination.  In 
some  states,  as  will  presently  be  seen,  the  doctrine  is  more  or  less 
restricted  by  statute  or  by  judicial  decision;  and  the  extent  to 
which  acts  of  one  spouse  constituting  a  ground  for  divorce  may  be 
set  up  in  bar  of  a  suit  for  divorce  brought  by  the  other  is  not  the 
same  in  all  states. 

The  doctrine  of  recrimination  has  its  foundation  in  the  principle 
that  one  who  asks  relief  must  come  into  court  with  clean  hands.  In 
Hoif  v.  Hoff  ^^  the  complainant  asked  a  divorce  on  the  ground  of 
extreme  cruelty.  The  defendant,  with  an  answer  denying  cruelty, 
filed  a  cross-bill  charging  the  complainant  with  extreme  cruelty. 
The  court  found  both  cases  made  out,  and  awarded  a  divorce  on 
each  bill.  On  appeal  it  was  held  that,  when  the  court  found  that 
"each  party  had  been  guilty  of  such  conduct  as  under  the  statute 
was  cause  for  divorce,  he  should  have  dismissed  both  bills,  and  left 
the  parties  where  their  misbehavior  had  placed  them."  "A  proper 
administration  of  justice,"  it  was  said,  "does  not  require  that  courts 
shall  occupy  their  time  and  the  time  of  people  who  are  so  unfortu- 
nate as  to  be  witnesses  of  the  misdoings  of  others  in  giving  equita- 
ble relief  to  parties  who  have  no  equities.  And  it  is  as  true  of 
divorce  cases  as  of  any  others  that  a  party  must  come  into  a  court 
of  equity  with  clean  hands.  Divorce  laws  are  made  to  give  relief 
to  the  innocent,  not  to  the  guilty."  " 

In  most  of  our  states  the  statutes  have  merely  prescribed  the 
grounds  for  divorce,  and  have  made  no  provision  at  all  respecting 


82  48  Jlich.  281,  12  N.   W.  160 

5s  And  see  Beeby  v.  Beeby,  1  Hagg.  Ecc.  789;  Otway  v.  Otway,  13  Prob. 
Div.  141 ;  Derby  v.  Derby,  21  N.  J.  Eq.  36 ;  Hubbard  v.  Hubbard,  74  Wis,  650, 
43  N.  W.  655,  6  L.  R.  A.  58;  Day  v.  Day,  71  Kan.  385,  80  Pac.  974;  Stone- 
burner  V.  Stoneburner,  11  Idaho,  603,  83  Pac.  93& 


222  SEPARATION  AND  DIVORCE.  (Ch.  7 

recrimination.  Under  these  circumstances,  the  courts  assume  that 
the  Legislature  intended  to  adopt  the  general  principles  which  had 
governed  the  ecclesiastical  courts  in  England  in  granting  divorces 
from  bed  and  board,  so  far  as  these  principles  are  applicable  and 
are  found  to  be  reasonable.^*  In  some  states  the  subject  of  re- 
crimination is  covered  by  the  statute,  the  Legislature  having  under- 
taken to  specify  what  conduct  may  be  set  up  by  way  of  recrimina- 
tion;   and,  of  course,  in  these  states  the  statute  is  controlling.*"* 

The  Conduct  Constituting  Ground  for  Recrimination. 

In  the  English  ecclesiastical  courts  the  only  conduct  on  the  part 
of  the  complainant  that  could  be  set  up  in  recrimination  to  defeat 
his  right  to  a  divorce  was  adultery.^*  And  the  same  rule  has  been 
applied  in  some  of  our  states.*^  The  rule,  however,  is  different 
under  the  modern  English  statutes ;  ^^  and,  as  will  be  seen,  it  is 
not  recognized  in  the  other  states  in  this  country,  unless  expressly 
declared  by  statute.  The  general  rule  in  this  country  is,  as  stated 
by  the  Massachusetts  court,  that  "a  suitor  for  divorce  cannot  pre- 
vail if  open  to  a  valid  charge,  by  way  of  recrimination,  of  any  of  the 
causes  of  divorce  set  out  in  the  statute.  Recrimination  as  a  bar 
to  divorce  is  not  limited  to  a  charge  of  the  same  nature  as  that  al- 
leged in  the  libel.  It  is  sufficient  if  the  recrimination  charges  any 
of  the  causes  for  divorce  so  declared  in  the  statute.  The  general 
principle  which  governs  in  a  case  where  one  party  recriminates  is 
that  recrimination  must  allege  a  cause  which  the  law  declares  suffi- 
cient for  a  divorce."  ^^  According  to  this  rule,  in  a  suit  for  divorce, 
whatever  may  be  the  ground  alleged  and  relied  upon,  the  defendant 
may  set  up  by  way  of  recrimination  any  conduct  on  the  part  of  the 
complainant  which  the  statute  declares  a  ground  for  divorce;  as, 
for  instance,  cruelty  or  desertion  or  drunkenness  in  a  suit  for  di- 


B4  Morrison  v.  Morrison,  142  Mass.  3G1,  8  N.  E.  59,  56  Am.  Rep.  688;  Rob- 
bins  V.  Bobbins,  140  Mass.  528,  5  N.  E.  837,  54  Am.  Rep.  488. 

5  5  Post,   p.  224. 

60  Harris  v.  Harris,  2  Hagg.  Ecc.  376,  411;  Coclisedge  v.  Coclisedge,  1  Rob. 
Ecc.  90. 

sTBast  V.  Bast,  82  111.  584;  Huling  v.  Ruling,  38  III.  App.  144;  Richard- 
son V.  Richardson,  4  Port.  (Ala.)  407,  30  Am,  Dec.  538. 

5  8  Otway  V.  Otway,  13  Prob.  Div.  141. 

59  Morrison  v.  Morrison,  142  Mass.  361,  8  N.  E.  60,  56  Am.  Rep.  688;  Cush- 
man  v.  Cushman,  194  Mass.  38,  79  N.  E.  809. 


§    109)  DEFENSES.  223 

vorce  on  the  ground  of  adultery,  and  vice  versa,  or  cruelty  in  a  suit 
for  divorce  on  the  ground  of  desertion,  and  vice  versa.^'^ 

In  Pease  v.  Pease,^^  a  husband  sued  for  divorce  on  the  ground  of 
his  wife's  adultery,  and  the  wife  was  permitted  to  defeat  the  suit 
by  showing,  in  recrimination,  that  he  had  been  guilty  of  cruelty 
that  would  have  entitled  her  to  a  divorce.  "We  do  not  perceive," 
said  the  court,  "upon  what  logical  principle  the  court  could  grant 
redress  to  the  husband  for  the  adultery  of  the  wife  when  he  him- 
self has  been  guilty  of  an  offense  which  would  give  her  a  right  to 
an  absolute  divorce  were  she  without  fault.  Both  parties  have  vio- 
lated the  marriage  contract,  and  can  the  court  look  with  more  favor 
upon  the  breach  of  one  than  the  other?  It  is  an  unquestioned 
principle  that,  where  one  party  is  shown  to  have  been  guilty  of 
adultery,  such  party  cannot  have  a  divorce  for  the  adultery  com- 
mitted by  the  other.^^  *  *  *  jj^  ^j-^g  forum  of  conscience,  adul- 
tery of  the  wife  may  be  regarded  as  a  more  heinous  violation  of 
social  duty  than  cruelty  by  the  husband.  But  the  statute  treats 
them  as  of  the  same  nature  and  same  grade  of  delinquency.  It  is 
true,  the  cruelty  of  the  husband  does  not  justify  the  adultery  of 
the  wife ;  neither  would  his  own  adultery ;  but  still  the  latter  has 
ever  been  held  a  bar.  And  where  both  adultery  and  cruelty  are 
made  equal  offenses,  attended  with  the  same  legal  consequences,  how 
can  the  court,  in  the  mutual  controversy,  discriminate  between  the 


60  Hall  V.  Hall,  4  Allen  (Mass.)  39;  Clapp  v.  Clapp,  DT  Mass.  531 ;  Handy 
V.  Handy,  124  Mass.  394;  Gumming  v.  Gumming,  135  Mass.  3S6,  4G  Am.  Rep. 
47G ;  Redington  v.  Redington,  2  Golo.  App.  8,  29  Pac.  811 ;  Pease  v.  Pease, 
72  Wis.  13G,  39  N.  W.  133;  Hubbard  v.  Hubbard,  74  Wis.  650,  43  N.  W.  655, 
6  L.  R,  A.  58;  Church  v.  Church,  16  R.  I.  667,  19  Atl.  244,  7  L.  R.  A.  385; 
Nagel  V.  Nagel,  12  Mo.  53 ;  Ryan  v.  Ryan,  9  Mo.  539 ;  Shackett  v.  Shackett, 
49  Vt.  195 ;  Conant  v.  Oouant,  10  Gal.  249,  70  Am.  Dec.  717;  Johns  v.  Johns, 
29  Ga.  718;  Ribet  v.  Ribet,  39  Ala.  348;  Holmes  v.  Holmes,  Walk.  (Miss.) 
474;  Adams  v.  Adams,  17  N.  J.  Eq.  324;  Reid  v.  Reid,  21  N.  J.  Eq.  331;  Har- 
vey V.  Harvey  (N.  J.  Ch.)  7  Atl.  871 ;  Wilson  v.  Wilson,  40  Iowa,  230 ;  Stone- 
burner  V.  Stoneburner,  83  Idaho,  ©u3,  83  Pac.  938. 

61  72  Wis.  136,  39  N.  W.  133. 

.  6  2  Proctor  V.  Proctor,  2  Hagg.  Const.  292;  Brisco  v.  Brisco,  2  Add.  Ecc 
259;  Astley  v.  Astley,  1  Hagg.  Ecc.  714 ;  Wood  v.  Wood,  2  Paige  (N.  Y.)  lOS ; 
Smith  V.  Smith,  4  Paige  (N.  Y.)  432,  27  Am.  Dec.  75;  Smith  v.  Smith,  19 
Wis.  522;  Mattox  v.  Mattox,  2  Ohio,  233,  15  Am.  Dec.  547;  Ghristianberry  v. 
Christiauberry,  3  Blackf.  (Ind.)  2U2,  25  Am.  Dec.  96;  Home  v.  Home,  72  N. 
C.  530 ;  Haines  v.  Haines,  62  Tex.  216 ;  Flavell  v.  Flavell,  20  N.  J.  Eq.  211 ; 
Adams  v.  Adams,  17  N.  J.  Eq.  324 ;  Reid  v.  Reid,  21  N.  J.  Eq.  331. 


224  SEPARATION  AND  DIVORCE.  (Ch.  7 

two,  and  give  one  the  preference  over  the  other?  It  seems  to  us 
that,  as  the  law  has  given  the  same  effect  to  the  one  offense  as  the 
other,  the  court  should  not  attempt  to  distinguish  between  them, 
but  treat  them  alike,  and  hold  one  a  bar  to  the  other." 

It  has  been  held  that  recrimination,  to  constitute  a  valid  defense, 
must  arise  out  of  the  fact  that  the  acts  or  conduct  for  which  the  com- 
plainant seeks  a  divorce  were  induced  by  or  in  retaliation  of  complain- 
ant's conduct,  relied  upon  in  recrimination,*^  This,  however,  is  con- 
trary to  the  great  weight  of  authority.  To  allow  any  such  doctrine 
would  exclude  the  charge  of  adultery  by  way  of  recrimination  in  a 
suit  for  divorce  on  the  ground  of  adultery. 

Same — Statutes   Governing   Recrimination. 

In  some  of  the  states  the  subject  of  recrimination  is  entirely  cov- 
ered by  the  statutes,  and  no  act  can  be  set  up  by  way  of  recrimination 
unless  the  case  comes  within  the  statute.  In  Minnesota  it  is  provided 
that,  "in  any  action  brought  for  a  divorce  on  the  ground  of  adultery," 
the  court  may  deny  a  divorce  "when  it  is  proved  that  the  plain- 
tiff has  also  been  guilty  of  adultery."  It  has  been  held  under  this 
statute  that  the  adultery  of  the  plaintiff  cannot  be  set  up  by  way 
of  recrimination,  unless  the  adultery  of  the  defendant  is  the  ground 
of  divorce  relied  upon.®*  In  other  words,  under  such  a  statute  we 
have  the  absurd  result  that,  while  adultery  by  the  husband  will  bar 
a  suit  by  him  for  a  divorce  for  the  wife's  adultery,  it  will  not  bar  a 
suit  by  him  for  a  divorce  on  the  ground  of  some  less  heinous  offense  by 
the  wife,  such  as  desertion,  cruelty,  or  drunkenness.  It  would  have 
been  better  if  the  Legislature  had  left  the  question  to  the  courts  to  be 
determined  on  principle.  So,  in  Pennsylvania,  where  a  statute  pro- 
vided that  if  the  defendant  in  a  divorce  suit  should  allege  and  prove 
certain  things,  they  should  be  a  good  defense  and  a  perpetual  bar,  it 
was  held  that  no  other  defense  than  those  mentioned  in  the  statute 
could  be  interposed.* ° 

In  a  number  of  states  it  is  expressly  declared  by  statute,  in  ac- 
cordance with  the  general  rule  obtaining  both  in  England  and  in  this 
country,  even  in  the  absence  of  statutory  provision,  that  a  divorce 
shall  not  be  granted  on  the  ground  of  adultery,  when  both  parties  are 
guilty  of  such  an  offense.     In  a  few  states  it  is  provided  that  there 

8  3  Trigg  V.  Trigg  (Tex.)  18  S.  W.  313. 

•*  Buerfening  v.  Buerfeniug,  23  Minn.  563. 

•B  Ristlne  V.  Ristlne,  4  Rawle  (Pa.)  460. 


§   109)  DEFENSES.  225 

shall  be  no  divorce  for  any  cause  when  the  complainant  was  guilty  of 
"like  conduct."  If  such  a  statute  is  to  be  strictly  construed,  the  only 
acts  that  can  be  set  up  by  way  of  recrimination  would  be  adultery 
when,  and  only  when,  a  divorce  is  sought  on  the  ground  of  adultery; 
desertion  when  a  divorce  is  sought  on  the  ground  of  desertion ;  cruel- 
ty when  a  divorce  is  sought  on  the  ground  of  cruelty,  etc.®®  It  is 
doubtful,  however,  whether  the  statute  should  be  so  strictly  con- 
strued,, for  the  words  "like  conduct"  might  well  be  taken  to  mean  con- 
duct constituting  ground  for  divorce."^ 

Same — Conduct  Condoned. 

As  to  whether  an  offense  which  has  been  condoned  can  be  set  up 
by  way  of  recrimination,  there  h^s  been  some  conflict  in  the  author- 
ities. Perhaps  in  no  case  has  the  offense  of  cruelty  or  desertion  been 
allowed  as  a  defense  after  condonation.  The  conflict  has  arisen  in  the 
case  of  adultery.  In  England,  by  statute,  the  courts  are  given  a  dis- 
cretionary power  to  refuse  a  divorce  on  the  ground  of  adultery,  if  the 
complainant  has  been  guilty  of  adultery  during  the  marriage;  and 
some  of  the  judges  have,  in  the  exercise  of  this  discretion,  refused  a 
divorce  on  the  ground  of  adultery,  because  of  adultery  by  the  com- 
plainant which  the  defendant  had  condoned.*®  Authorities  in  New 
York  are  to  the  same  effect.®®  By  the  better  opinion,  however,  both 
in  England  and  in  this  country,  and  whether  there  is  any  statute  on 
the  subject  or  not,  adultery  by  one  spouse,  if  it  has  been  condoned  by 
the  other,  is  no  bar  to  a  suit  for  a  divorce  for  the  subsequent  adultery 
of  the  other.^®     An  offense,  when   it  is  condoned,   ceases   to  be   a 

6  6  There  have  been,  and  perhaps  there  are  now,  such  statutes  in  Michigan, 
Nebraska,  Wyoming,  and  Arizona.     Stim.  Am.  SL  Law,  §  6217. 

8  7  See  Hoff  v.  Hoff,  48  Mich.  281,  12  N.  W.  160.  In  this  case  the  divorce 
was  asked  on  the  ground  of  extreme  cruelty,  and  extreme  cruelty  was  the 
conduct  set  up  by  way  of  recrimination,  so  that  it  was  strictly  within  the 
words  of  the  statute.  But  the  language  of  the  court  makes  it  clear  that  the 
broader  view  was  taken  of  the  «tatute.  And  see  Morrison  v.  Morrison,  64 
Mich.  53,  30  N.  W.  903. 

6  8  Seller  v.  Seller,  1  Swab.  &  T.  482;  Goode  v.  Goode,  2  Swab.  &  T.  253. 

0  9  Wood  v.  Wood,  2  Paige  (N.  Y.)  108;  Morrell  v.  Morrell,  1  Barb.  (N.  Y.) 
31S. 

7  0  Gumming  v.  Gumming,  135  Mass.  386,  46  Am.  Rep.  476;  Anichini  v.  Ani- 
chini,  2  Curt.  Ecc.  210;  Jones  v.  Jones,  18  N.  J.  Eq.  33,  90  Am.  Dec.  607;  Mas- 
ten  v.  Hasten,  15  N.  H.  159.  See  Bleck  v.  Bleck,  27  Hun  (N.  Y.)  296.  In 
Gumming  v.  Gumming,  supra,  the  rule  was  applied  in  the  adultery  by  the 
wife,  which  had  been  condoned  by  the  husband.     "An  act  of  adultery  com- 

TIFF.P.&  D.Rel.(2d  Ed.)— 15 


226  SEPARATION  AND  DIVORCE.  (Ch.  7 

ground  for  a  divorce,  and  for  this  reason,  if  for  no  other,  it  is  not 
ground  for  recrimination.  The  question  was  fully  considered  by  the 
Massachusetts  court  in  Gumming  v.  Gumming;  ^^  and  after  a  review 
of  the  authorities,  and  the  reasons  for  the  rule,  it  was  held  that  the 
court  should  exercise  no  discretion  in  the  matter,  but  should  apply 
the  rule  in  all  cases.  Even  where  a  statute  expressly  provides,  as  it 
does  in  some  states,  that  a  divorce  shall  not  be  granted  on  the  ground 
of  adultery  where  both  parties  have  been  guilty,  it  does  not  seem 
that  the  statute  should  be  construed  as  applying  to  adultery  that  has 
been  condoned.^' 


EXTRATERRITORIAL  EtTECT  OF  DIVORCE. 

110.  A  decree  of  divorce,  rendered  in  accordance  tvitli  tlie  lavr  of 
the  forum  by  a  court  of  competent  jurisdiction,  is  valid  every- 
wliere,  and  ivill  be  given  full  force  and  effect  in  all  otber 
states.  This  rule  is,  how^ever,  subject  to  the  exception  that 
the  decree  is  subject  to  collateral  attack  for  ixrant  of  juris- 
diction. 

Under  and  by  virtue  of  the  "full  faith  and  credit"  clause  of  the 
federal  Gonstitution,''^  decrees  of  divorce,  rendered  by  a  court  of 
competent  jurisdiction  and  valid  when  rendered,  are  conclusive  in 
every  other  state.  This  provision,  however,  does  not  preclude  an  in- 
quiry as  to  the  jurisdiction,  in  so  far  as  it  rests  on  the  domicile  of 
the  parties,  of  the  court  rendering  the  decree.''* 


mitted  by  the  husband,  and  forgiven  for  years,  should  not  be  held  to  compel 
the  husband  to  submit  without  redress  to  the  faithlessness  and  unrestrained 
profligacy  of  his  wife.  The  penalty  is  too  severe  for  a  forgiven  offense.  It 
is  better  to  hold  that,  when  the  erring  party  is  received  back  and  forgiven, 
the  marriage  contract  is  renewed,  and  begins  as  res  Integra,  and  that  it  is 
for  the  party,  and  not  for  the  courts,  to  forgive  the  new  offense."  Jones  v. 
Jones,  supra.  • 

71  135  Mass.  386,  46  Am.  Rep.  476. 

7  2  See  Dictum  in  Gumming  v.  Gumming,  135  Mass.  386,  40  Am.  Rep.  476, 
and  in  Jones  v.  Jones,  18  N.  J.  Eq.  33,  90  Am.  Dec.  007. 

7  3  Gonst  U.  S.  art  4,  §  1,  providing  that  full  faith  and  credit  shall  be  given 
in  each  state  to  the  public  acts,  records  and  judicial  proceedings  of  every 
other  state.    Ditson  v.  Ditson,  4  R.  I.  87. 

7  4  Haddock  v.  Haddock,  201  U.  S.  562,  26  Sup.  Gt  525,  50  L.  Ed.  867;  Hood 
V.  State,  56  Ind.  203,  26  Am.  Rep.  21;  Hunt  T.  Hunt,  72  N.  Y.  217,  28  Am. 
Rep.  129. 


§    110)  EXTRATERRITORIAL    EFFECT   OF   DIVORCE.  227 

PVom  these  principles  it  follows  that,  as  the  court  has  Jurisdic- 
tion when  both  parties  are  domiciled  in  the  state  where  the  divorce 
is  sought/''  the  decree  of  divorce,  if  valid  there,  is  valid  every- 
where;^' and,  on  the  other  hand,  as  the  court  has  no  jurisdiction 
if  neither  party  is  domiciled  in  the  state  where  divorce  is  sought/^ 
the  decree,  whether  regarded  as  valid  in  that  state  or  not,  is  of  no 
force  in  other  states.''* 

It  may  be,  however,  that  only  one  of  the  parties  is  domiciled  in 
the  state  where  divorce  is  sought.  As  to  the  effect  of  the  decree  in 
such  cases  there  is  a  great  conflict  of  opinion.  This  conflict  grows 
out  of  the  diflference  of  opinion  as  to  the  nature  of  the  proceeding 
for  divorce,  viz.,  whether  it  is  a  proceeding  in  rem  or  a  proceeding 
in  personam.'^"  Regarding  the  actual  subject-matter  of  the  litiga- 
tion as  the  marriage  status,  the  general  doctrine  is  that  the  proceed- 
ing is  in  rem;  the  status  being  the  res.^°  This  doctrine  has,  how- 
ever, been  modified  in  some  jurisdictions,  where  it  has  been  recog- 
nized that  the  proceeding  is  not  strictly  in  rem,  but  contains  a  per- 
sonal element.  In  these  jurisdictions  the  proceeding  is  regarded  as 
quasi  in  rem.^^ 

7  5  Ante,  p.  189. 

T 6  Hood  V.  Hood,  11  Allen  (Mass.)  196;  Burlen  v.  Shannon,  115  Mass.  438; 
Cbeely  v.  Clayton,  110  U.  S.  701,  4  Sup.  Ct.  328,  28  L.  Ed.  298;  McGill  v. 
Deming,  44  Ohio  St  645,  11  N.  E.  118.  See,  also,  Atherton  v.  Atherton,  181 
U.  S.  155,  21  Sup.  Ot.  544,  45  L.  Ed.  794,  reversing  155  N.  Y.  129,  49  N.  E. 
933,  40  L.  R.  A.  291,  63  Am.  St.  Rep.  650. 

7  7  Ante,  p.  189.. 

7  8  State  V.  Armington,  25  Minn.  29;  Barber  v.  Root,  10  Mass.  2G0;  People 
V.  Dawell,  25  Mich.  247,  12  Am.  Rep.  260. 

79  A  proceeding  in  personam  is  one  which  seeks  to  fix  a  personal  liability 
on  the  defendant,  such  as  an  action  to  recover  a  money  judgment.  A  pro- 
ceeding in  rem,  on  the  other  hand,  is  aimed  only  at  defendant's  property 
or  something  vrithin  the  court's  jurisdiction.  A  judgment  in  personam  re- 
quires personal  service  on  the  defendant  within  the  limits  of  the  court's  ju- 
risdiction, while  a  judgment  In  rem  does  not  require  service  within  the  ju- 
risdiction, except  on  the  thing  itself;  service  on  the  defendant  outside  the 
jurisdiction  by  publication  or  otherwise  being  generally  sufficient  See  Cross 
V.  Armstrong,  44  Ohio  St  613,  10  N.  E.  160. 

80  McGill  V.  Deming,  44  Ohio  St  645,  11  N.  E.  118;  Ellison  v.  Martin,  53  Mo. 
575;  Dunham  v.  Dunham,  162  111.  589,  44  N.  E.  841,  35  L.  R.  A.  70;  Butler 
V.  Washington,  45  La.  Ann.  279,  12  South.  356,  19  L.  R.  A.  814;  In  re  Ellis' 
Estate,  55  Minn.  401,  56  N.  W.  1056,  23  L.  R.  A.  287,  43  Am.  St.  Rep.  514. 

81  Doughty  V.  Doughty,  27  N.  J.  Eq.  315;  McFarlane  v.  McFarlaue,  43  Or. 
477,  73  Pac  203. 


228  SEPARATION  AND  DIVORCE.  (Ch.  7 

It  is  evident  that,  in  cases  where  only  one  party  is  domiciled  in 
the  state  where  divorce  is  sought,  there  is  only  partial  jurisdiction 
of  the  res.  On  the  view  the  courts  have  taken  of  the  nature  of 
divorce  proceedings  as  in  rem  or  in  personam  depends  the  decision 
when  the  question  of  the  extraterritorial  effect  of  the  decree  has 
arisen.  In  some  states  the  courts,  regarding  the  proceeding  as  one 
in  rem,  have  held  that  only  such  notice  to  the  nonresident  defend- 
ant is  necessary  as  is  required  by  the  local  law,  and  that  the  decree 
so  rendered  is  binding  in  all  courts.^^ 

The  courts  of  New  York  and  a  few  other  states  have  gone  to  the 
other  extreme,  and,  on  the  theory  that  the  proceeding  for  divorce 
is  a  proceeding  in  personam,  have  held  that  a  divorce  obtained  in  a 
state  where  the  plaintiff  alone  is  domiciled  is  of  no  extraterritorial 
effect  unless  the  defendant  was  personally  served  with  notice  within 
the  jurisdiction  of  the  court  granting  the  decree,  or  voluntarily  ap- 
peared and  submitted  to  the  jurisdiction.^' 


82  Ditson  V.  Ditson,  4  R.  I.  87,  is  the  leading  case.  The  doctrine  has  been 
followed  and  approved  in  Kline  v.  Kline,  57  Iowa,  386,  10  N.  W.  825,  42  Am. 
Rep.  47;  Thurston  v.  Thurston,  58  Minn.  279,  59  N.  W.  1017;  Doerr  v.  For- 
sythe,  50  Ohio  St.  726,  35  N.  E.  1055,  40  Am.  St.  Rep.  703;  Rodgers  v.  Rodgers, 
56  Kan.  483,  43  Pac.  779;  Dunham  v.  Dunham,  162  111.  589,  44  N.  E.  841,  35 
li.  R.  A.  70.  In  these  cases  it  was,  however,  conceded  that  a  decree  for  ali- 
mony, or  for  custody  of  the  children,  or  affecting  property  rights,  was  not 
conclusive,  as  such  decrees  were  in  personam.  But  see  Hawkins  v,  Ragsdale, 
80  Ky.  353,  44  Am.  Rep.  483,  where  the  rule  was  under  the  statute  extended 
even  to  a  decree  affecting  dower.  On  the  general  doctrine,  see,  also,  Hilbish 
V.  Hattle,  145  Ind.  59,  44  N.  E.  20,  33  L.  R.  A.  783,  where,  however,  there 
seems  to  have  been  personal  service  on  the  defendant. 

8  3  People  V.  Baker,  76  N.  Y.  78,  32  Am.  Rep.  274,  is  the  leading  case.  See, 
also,  Matter  of  Kimball,  155  N.  Y.  62,  49  N.  E.  331 ;  Williams  v.  Williams,  130 
N.  Y.  193,  29  N.  E.  98,  14  L.  R.  A.  220,  27  Am.  St  Rep.  517 ;  Ransom  v.  Ran- 
som, 54  Misc.  Rep.  410,  104  N.  Y.  Supp.  198;  Cross  v.  Cross,  108  N.  Y.  G2S,  15 
N.  E.  333 ;  Olmsted  v.  Olmsted,  190  N.  Y.  458,  83  N.  E.  509 ;  O'Dea  v.  O'Dea, 
101  N.  Y.  23,  4  N.  E.  110.  In  .Jones  v.  Jones,  108  N.  Y.  415,  15  N.  B.  707,  2 
Am.  St.  Rep.  447,  the  doctrine  of  People  v.  Baker  was  approved,  but  the  de- 
cree was  held  valid,  because  the  defendant  had  voluntarily  appeared  in  the 
suit  in  the  Texas  court.  The  doctrine  of  the  New  York  courts  has  also  been 
approved  in  Cook  v.  Cook,  56  Wis.  195,  14  N.  W.  33,  43  Am.  Rep.  706 ;  Har- 
ris V.  Harris,  115  N.  C  587,  20  S.  E.  187,  44  Am.  St.  Rep.  471;  McCreery  v. 
Davis,  44  S.  C.  195,  22  S.  E.  178,  28  L.  R.  A.  655,  51  Am.  St.  Rep.  794.  And 
see  Haddock  v.  Haddock,  201  U.  S.  562,  26  Sup.  Ct.  525,  50  L.  Ed.  867,  af- 
firming 178  N.  Y.  557,  70  N.  E.  1009,  where  the  decree  of  divorce  was  ob- 
tained by  the  husband,  domiciled  in  Connecticut,  with  only  constructive  serv- 


§    111)  LEGISLATIVE   DIVORCE.  229 

In  New  Jersey  and  a  few  other  states  the  courts  have  taken  a  mid- 
dle ground.  The  doctrine  of  these  cases  is  that  a  proceeding  for  di- 
vorce is  quasi  in  rem,  not  requiring  actual  personal  service  within  the 
jurisdiction  of  the  court,  and  that  the  service  is  sufficient  to  ren- 
der the  decree  binding  extraterritorially  if  the  best  practicable  serv- 
ice is  made,  such  as  service  by  mail  or  personal  service  outside  the 
territorial  jurisdiction  of  the  court.^* 

LEGISLATIVE  DIVORCE. 

111.  In  the  absence  of  constitntional  restrictions,  tlie  legislature  of  a 
state  lias  the  po-wer  to  grant  divorces  by  special  act;  and 
sncli  an  act  is  not  xritliin  the  constitutional  prohibition 
against  laxrs   impairing  the   obligation   of   contracts. 

The  English  ecclesiastical  courts  were  limited  to  the  granting  of 
divorces  from  bed  and  board,  and  could  not  grant  a  divorce  a  vinculo 
matrimonii.  This  power,  however,  was  exercised  by  Parliament ;  and, 
when  this  country  was  settled,  the  legislative  assemblies  of  the  col- 
onies followed  the  example  of  Parliament,  and  treated  the  subject  as 
within  their  province.  Since  then  divorces  a  vinculo  have  been  grant- 
ed by  special  act  of  the  Legislature  in  very  many  of  the  states.  In 
some  states  the  power  of  the  Legislature  to  grant  divorces  is  restricted 
by  constitutional  provisions.^"  In  the  absence  of  such  restrictions, 
however,  it  is  well  settled  that  the  power  exists.  In  a  late  case  the 
question  came  before  the  Supreme  Court  of  the  United  States ;  and  it 
was  held  that  a  special  act  of  a  territorial  Legislature  dissolving  the 
marriage  relation  between  a  husband  resident  in  the  territory  and  a 

Ice  on  the  wife,  whose  domicile  was  New  York.  Nevertheless  the  New  York 
courts  recognize  the  rule  that  the  party  obtaining  the  divorce  may  be  es- 
topped to  set  up  the  want  of  jurisdiction.  Starbuck  v.  Starbuck,  173  N.  Y. 
503,  G6  N.  E.  193,  93  Am.  St  Rep.  631. 

84  Felt  v.  Felt,  59  N.  J.  Eq.  6u6,  45  Atl.  105,  49  Atl.  1071,  47  L.  R.  A.  546, 
83  Am.  St.  Rep.  612;  Doughty  v.  Doughty,  28  N.  J.  Eq.  581;  Magowan  v. 
Magowan,  57  N.  J.  Eq.  195,  39  Atl.  364.  See,  also,  Smith  v.  Smith,  43  Ui. 
"Ann.  1140,  10  South.  248,  and  Van  Orsdal  v.  Van  Orsdal,  67  Iowa.  35,  24 
N.  W.  579,  in  which  personal  service  was  had  outside  the  jm'isdiction  of 
the  court  rendering  the  decree.  The  New  Jersey  rule  has  also  been  approv- 
ed in  Massachusetts.  Burlen  v.  Shannon,  115  Mass.  43S;  Loker  v.  Gerald, 
157  Mass.  42,  31  N.  E.  709,  16  L.  R.  A.  497,  34  Am.  St  Rep.  252.  Compare 
State  V.  Armington,  25  Minn.  29. 

«6  Sparhawk  v.  Sparhawk,  116  Mass.  315;    State  v.  Fry,  4  Mo.  120. 


230  SEPARATION  AND  DIVORCE.  (Ch.  7 

wife  who  was  a  nonresident  was  a  valid  act  of  legislative  power,  and 
that  it  was  not  rendered  invalid  by  the  fact  that  there  was  no  cause 
for  divorce,  and  that  the  wife  was  not  notified.®*  It  was  also  held 
that  such  an  act  does  not  violate  the  clause  of  the  federal  Constitu- 
tion prohibiting  laws  impairing  the  obligation  of  contracts,  since  mar- 
riage is  not  a  contract,  within  the  meaning  of  that  provision.'' 


8  6  Maynard  v.  Hill,  125  U.  S.  190,  8  Sup.  Ct.  723,  31  L.  Ed.  654;  Cronlse 
V.  Cronise,  54  Pa.  255;  Crane  v.  Meginnis,  1  Gill  &  J.  (Md.)  474,  19  Am,  Dec. 
237;  Starr  v.  Pease,  8  Conn.  541;  Bingham  v.  Miller,  17  Ohio,  445,  49  Am. 
Dec.  471;  State  v.  Duket,  90  Wis.  272,  63  N.  W.  83,  31  L.  R.  A,  515,  48  Am. 
St.  Rep.  928. 

«T  Maynard  v.  HiU,  125  U.  S.  190,  8  Sup.  Ct  723,  31  I*  Ed.  654. 


Part  1 1. 


PARENT  AND  CHILD. 


TnT.P.&  D.Rbl.  (2d  Ed.)  (231)« 


§§    112-113)      LEGITIMACY,  ILLEGITIMACY,  AND  ADOPTION.  233 

CHAPTER  VIII. 
LEGITIMAC5Y,  ILLEGITIMACY,  AND  ADOPTION. 

112-113.     Legitimacy  of  Children. 

114.  Adoption  of  Children. 

115.  Status  of  Illegitimate  Children. 

Persons  occupying  the  relation  of  parent  and  child  have  certain 
rights,  and  are  subject  to  certain  duties  and  obligations,  which  arise 
from  the  legal  status  established  by  that  relation.  This  status  exists 
only  between  the  parent  and  his  legitimate  children  and  his  children 
by  adoption.  Before  explaining  these  rights,  duties,  and  obligations, 
therefore,  it  is  necessary  to  show  what  constitutes  legitimacy,  and 
how  the  relation  of  parent  and  child  may  arise  from  adoption.  In 
this  chapter  will  also  be  considered  the  status  of  parent  and  illegiti- 
mate child,  and  the  rights  and  duties  which  arise  from  that  relation. 

LEGITIMACY   OF   CHILDREN. 

112.  A  child  is  legitimate  at  common  laxv  xirlien  it  was  bom  or  be- 

gotten during  the  la-wrful  iv^edlock  of  its  parents,  and  very 
generally,  by  statute  in  this  country,  when  its  parents  marry 
subsequent  to   its   birth. 

113.  There  is  a  strong  presumption  that  the  child  of  a  married  wo- 

man is  legitimate;  but  this  is  a  presumption  of  fact,  and 
may  be  rebutted  by  clear  and  convincing  evidence  that  her 
husband  is   not  its   father. 

"A  legitimate  child,"  says  Blackstone,  "is  he  that  is  born  in  lawful 
wedlock,  or  within  a  competent  time  afterwards.  'Pater  est  quem 
nuptiae  demonstrant,'  is  the  rule  of  the  civil  law;  and  this  holds  with 
the  civilians,  whether  the  nuptials  happen  before  or  after  the  birth  of 
the  child.  With  us  in  England  the  rule  is  narrowed,  for  the  nuptials 
must  be  precedent  to  the  birth."  ^  A  child,  to  be  legitimate,  need  not 
necessarily  have  been  begotten  during  wedlock.     It  is  sufficient  if  he 

1 1  Bl.  Comm.  446. 


234  LEGITIMACY,  ILLEGITIMACY,  AND   ADOPTION.  (Ch.  8 

was  born  after,  though  begotten  before,  marriage.'*  In  Rex  v.  Luffe,' 
Lord  Ellenborough  said  that,  "with  respect  to  the  case  where  the 
parents  have  married  so  recently  before  the  birth  of  the  child  that 
it  could  not  have  been  begotten  in  wedlock,  it  stands  upon  its  own 
peculiar  ground.  The  marriage  of  the  parties  is  the  criterion  adopted 
by  the  law,  in  cases  of  antenuptial  generation,  for  ascertaining  the 
actual  parentage  of  the  child.  For  this  purpose  it  will  not  examine 
when  the  gestation  began,  looking  only  to  the  recognition  of  it  by 
the  husband  in  the  subsequent  act  of  marriage."  "A  bastard,  by  our 
English  laws,"  says  Blackstone,  "is  one  that  is  not  only  begotten,  but 
bom,  out  of  lawful  matrimony.  The  civil  and  canon  laws  do  not  al- 
low a  child  to  remain  a  bastard  if  the  parents  afterwards  intermarry ; 
and  herein  they  differ  most  materially  from  our  law;  which,  though 
not  so  strict  as  to  require  that  the  child  shall  be  begotten,  yet  makes 
it  an  indispensable  condition,  to  make  it  legitimate,  that  it  shall  be 
born,  after  lawful  wedlock."  *  Of  course,  all  children  born  so  long 
after  the  death  of  tlie  husband  that,  by  the  usual  course  of  gestation, 
they  could  not  possibly  have  been  begotten  by  him,  are  illegitimate; 
and,  generally,  all  children  are  illegitimate  if  it  is  clearly  shown  by 
the  circumstances  that  the  husband  could  not  have  been  or  is  not  their 
father. 

It  will  be  noticed  from  what  has  been  said  that,  according  to  the 
civil  law,  children  not  only  begotten,  but  born,  before  the  marriage 
of  their  parents,  are  rendered  legitimate  by  the  marriage.  The  rule 
of  the  common  law  to  the  contrary  is  still  in  force  in  England,  and 
in  some  of  our  states ;  °  but  in  most  states  statutes  have  been  enact- 
ed providing,  in  accordance  with  the  civil  law,  that  the  marriage  of 
parents  shall  render  legitimate,  for  all  purposes,  a  child  born  before 


2  Rex  V.  Luffe,  8  East,  198;  Stegall  v.  Stegall,  2  Brock.  256,  Fed.  Cas.  No. 
13,351 ;  Dennison  v.  Page,  29  Pa.  420,  72  Am.  Dec.  644 ;  Bowles  v.  Bingham, 
2  Munf.  (Va.)  442,  5  Am.  Dec.  497;  Id.,  3  Munf.  (Va.)  599;  State  v.  Wilson, 
32  N.  O.  131;  State  v.  Herman,  35  N.  C.  502.  And  see  Grant  v.  Stlmpson, 
79  Conn.  617,  66  Atl.  166. 

8  8  East,  198. 

4  1  Bl.  Comm.  454. 

0  Eversley,  Dom.  Rel.  526.  It  Is  held  in  England  that  a  child  born  before 
marriage,  though  made  legitimate  according  to  the  laws  of  the  country  of 
his  birth,  per  subsequens  matrimouium,  cannot  inherit  land  in  England. 
Birtwhistle  v.  Vardill,  7  Clarli  &  F.  895.  ■  The  rule  in  this  country,  how- 
ever, is  different    Miller  v.  Miller,  91  N.  Y.  315,  43  Am.  Rep.  669. 


§§   112-113)  LEGITIMACY   OF  CHILDREN,  235 

the  marriage,'  or  that  such  result  will  follow  if  the  child  is  also  ac- 
knowledged and  taken  into  the  family.'^  And  such  statutes  are  valid.' 
But  it  is  held  in  some  states  that  the  marriage  will  not  legitimate  the 
offspring  of  an  adulterous  intercourse  before  the  marriage.*  In  a 
number  of  states,  also,  by  statute,  the  father  of  an  illegitimate  child, 
by  publicly  acknowledging  it  as  his  own,  receiving  it  as  such  into  his 
family,  and  otherwise  treating  it  as  if  legitimate,  thereby  renders  it 
legitimate  for  all  purposes.^ <>    And  in  Michigan,  by  statute,  if  the  fath- 

Stim.  Am.  St.  Law,  §  GGSl ;  Olmsted  v.  Olmsted,  190  N.  Y.  458,  83  N.  E. 
569;  In  re  Adams'  Estate,  6  Pa.  Co.  Ct.  R.  591;  Clauer's  Appeal,  11  Wkly. 
Notes  Cas.  (Pa.)  427;  Miller  v.  Miller,  91  N.  Y.  315,  43  Am.  Rep.  GG9.  But 
a  void  marriage  will  not  legitimate  a  child  bom  prior  thereto,  though  the 
children  of  such  marriage  are  legitimate.  Adams  v.  Adams,  154  Mass.  290, 
28  N.  E.  260,  13  L.  R.  A.  275. 

7  Inhabitants  of  Monson  v.  Inhabitants  of  Palmer,  8  Allen  (Mass.)  551 ; 
Town  of  Rockingham  v.  Town  of  Mount  Holly,  26  Vt.  653;  McBride  v.  Sul- 
livan (Ala.)  45  South.  902;  Breidenstein  v.  Bertram,  198  Mo.  328,  95  S.  W. 
828;  Stein's  Adm'r  v.  Stein,  106  S.  W.  8G0,  32  Ky.  Law  Rep.  664;  Landry  v. 
American  Creosote  Works,  119  La.  231.  43  South.  1016,  11  L.  R.  A.  (N.  S.) 
387;  Trayer  v.  Setzer,  72  Neb.  845,  101  N.  W.  989.  See,  also,  Houghton  v. 
Dickinson,  196  Mass.  389,  82  N.  E.  481,  holding  that  the  subsequent  recogni- 
tion of  the  child  may  be  shown  by  conduct,  as  well  as  by  declarations. 

8  Stim.  Am.  St.  Law,  §  6631.  See  Miller  v.  MUler,  91  N.  Y.  315,  43  Am. 
Rep.  669 ;    Houghton  v.  Dickinson,  196  Mass.  389,  82  N.  E.  481. 

»  Adams  v.  Adams,  154  Mass.  290,  28  N.  E.  260,  13  L.  R.  A.  275;  Hall  v. 
Hall,  82  S.  W.  300,  26  Ky.  Law  Rep.  610 ;  Sams  v.  Sams'  Adm'r,  85  Ky.  396, 
3  S.  W.  593.  But  see,  contra,  Miller  v.  Pennington,  218  111.  220,  75  N.  E.  919, 
1  L.  R.  A.  (N.  S.)  773 ;  Robinson  v.  Ruprecht,  191  111.  424,  61  N.  E.  631 ;  Ives 
V.  McNicoll,  59  Ohio  St.  402,  53  N.  E.  GO,  43  L.  R.  A.  772,  69  Am.  St.  Rep.  780. 

10  Stim.  Am.  St  Law,  §  GG32.  See  Blythe  v.  Ayres,  96  Cal.  532,  31  Pac.  915, 
19  L.  R.  A.  40;  Id.,  102  Cal.  254,  36  Pac.  522.  Legitimation  may  also  be  af- 
fected by  notarial  act.  Davenport  v.  Davenport,  116  La.  1009,  41  South.  240, 
114  Am.  St.  Rep.  575.  A  writing  to  constitute  an  acknowledgment  of  paterni- 
ty, must  be  one  in  which  the  paternity  is  directly,  unequivocally,  and  un- 
questionably acknowledged.  Moore  v.  Flack,  77  Neb.  52,  108  N.  W.  143.  So, 
too,  it  has  been  held  in  California,  where  the  statute  provides  for  legitimation 
by  "public  acknowledgment,"  that  a  will  recognizing  an  illegitimate  child  as 
the  son  of  testator,  but  which  remained  in  the  possession  of  testator's  brother 
until  after  testator's  death,  was  not  a  "public  acknowledgment,"  within  the 
statute.  In  re  De  Laveaga's  Estate,  142  Cal.  158,  75  Pac.  790.  Compare  In 
re  Wharton's  Estate,  218  Pa.  296,  67  Atl.  414.  But  see  Pederson  v.  Cbristof- 
ferson,  97  Minn.  491,  106  N.  W.  958,  holding  that  a  writing  whereby  the  mak- 
er acknowledges  himself  to  be  the  father  of  a  child,  as  provided  by  Gen. 
St.  1894,  §  4473,  need  not  be  made  for  the  express  purpose  of  acknowledging 
the  child,  but  is  sufficient  if  made  in  any  written  instrument,  collateral  or 


236  LEGITIMACY,  ILLEGITIMACY,  AND   ADOPTION,  (Cll.  8 

er,  by  writing  executed,  acknowledged  and  recorded  like  deeds  of 
real  estate,  but  with  the  judge  of  probate,  acknowledge  such  child, 
it  is  legitimate  for  all  purposes. ^^  There  are  various  other  statutory 
provisions  in  the  different  states  by  which  illegitimate  children  may 
be  rendered  legitimate.  In  a  few  states  the  putative  father  of  a  bas- 
tard has  a  process  in  court  by  which  he  may  legitimate  the  child. ^' 
In  some  of  the  states  illegitimate  children  who  have  been  rendered 
legitimate  under  statutory  provisions  are  called  "legitimated"  chil- 
dren. Statutes  allowing  illegitimate  children  to  inherit,  or  otherwise 
clothing  them  with  the  status  and  rights  of  a  legitimate  child,  are  per- 
fectly valid,  for  the  Legislature  has  the  right  to  change  the  common 
law  in  this  respect.^'  Such  statutes,  being  in  derogation  of  the  com- 
mon law,  should  be  strictly  construed;  but  the  courts  cannot  refuse 
to  give  full  effect  to  the  clear  intention  of  the  Legislature,  as  evi- 
denced by  the  language  of  the  statute.^* 

At  common  law,  if  a  marriage  is  void,  the  children  of  such  a  mar- 
riage are  illegitimate,  though  the  parties  in  marrying  may  have  act- 
ed in  the  most  perfect  good  faith.^^  So  it  is,  also,  where  a  marriage 
is  voidable  and  avoided  by  disaffirmance,  or  by  a  decree  of  nullity  in 
the  lifetime  of  the  parties,  so  as  to  render  it  void  ab  initio  on  such 
disaffirmance  or  the  entry  of  such  a  decree.^®  These  were  harsh  rules, 
and  in  most  states  they  have  been  greatly  modified  by  statute.  In 
some  states  the  statute  is  very  broad.  In  Wisconsin,  for  instance,  the 
statute  declares  that  "the  issue  of  all  marriages  declared  null  in  law 
shall,  nevertheless,  be  legitimate."  Such  a  statute,  said  the  Wiscon- 
sin court,  means  "that  a  child  born  within  the  wedlock  of  a  regular 
marriage,  which  is  null  in  law,  shall,  nevertheless,  be  the  legitimate 
child  and  heir  of  each  and  both  parents,  so  far  as  the  question  of  le- 
gitimacy is  concerned.  In  other  words,  all  such  children  are  legitimate 
to  all  intents  and  purposes.  It  is  a  very  just  and  humane  provision, 
and  serves  to  mitigate  somewhat  the  severity  of  the  old  law,  which  vis- 
ited upon  the  children  the  sins  of  their  parents."     In  the  case  from 


otherwise,  slgmed  by  the  father  In  the  presence  of  a  competent  witness,  In 
which  he  clearly  ackuowledges  that  he  is  such  father. 

11  How.  Ann.  St.  §  5775a. 

12  Stim.  Am.  St.  Law,  §  6683. 

18  Cope  V.  Cope,  137  U.  S.  682,  11  Sup.  Ct  222,  34  L.  Ed.  832;   Miller  v. 
Miller,  91  N.  Y.  315,  43  Am.  Rep.  609. 

1*  Cope  V.  Cope,  137  U.  S.  682,  11  Sup.  Ct.  222,  34  L.  Ed.  832. 
15  Ante,  pp.  28,  38,  40.  lo  Ante,  p.  40. 


§§   112-113)  LEGITIMACY   OF  CHILDREN.  237 

which  we  have  quoted,  therefore,  it  was  held  that  a  child  born  with- 
in the  wedlock  of  a  regular  marriage,  which  is  void  in  law  because  the 
woman  is  already  married,  is,  nevertheless,  the  legitimate  child  and 
heir  of  both  parents.^^ 

Conflict  of  Laws. 

By  the  great  weight  of  authority,  the  legitimacy  of  a  child,  not  only 
for  the  purpose  of  determining  whether  he  can  inherit,  but  for  all 
other  purposes,  is  to  be  determined  by  the  law  of  the  place  where  he 
was  born  and  the  parents  were  domiciled. ^^  A  child,  therefore,  that 
is  illegitimate  in  the  place  of  its  birth,  is  incapable  of  inheriting  in 
another  state,  though,  if  he  had  been  born  in  the  latter  state,  he  would 
be  capable  of  inheriting.^"  On  the  other  hand,  if  an  illegitimate  child 
has,  by  the  subsequent  marriage  of  his  parents,  been  rendered  legit- 
imate under  a  statute  of  the  state  in  which  he  was  born  and  his  par- 
ents were  domiciled,  he  will  be  recognized  as  legitimate  for  all  pur- 
poses in  another  state,  in  which  there  is  no  such  statute. ^°  Some  of 
the  cases  are  in  conflict  with  this  doctrine.  Thus,  it  has  been  held  in 
some  jurisdictions  that  a  person  cannot  inherit  land  in  one  state  or 
country  if  he  is  illegitimate  by  the  laws  of  that  state  or  country, 
though  he  may  be  legitimate  by  the  laws  of  the  state  or  country  in 
which  he  was  born,  and  in  which  he  and  his  parents  are  domiciled.^ ^ 


IT  Watts  V.  Owens,  62  Wis.  512.  22  N.  W.  720.  And  see  Lincecum  v.  Lin- 
cecum,  3  Mo.  441;  Dyer  v.  Brannock.  66  Mo.  391,  27  Am.  Rep.  359;  Green  v. 
Green,  126  Mo.  17,  28  S.  W.  752;  Glass  v.  Glass,  114  Mass.  563;  Adams  v. 
Adams,  154  Mass.  290,  28  N.  E).  260,  13  L..  R.  A.  275;  Inhabitants  of  Hiram 
V.  Pierce,  45  Me.  367,  71  Am.  Dec.  555 ;  Earle  v.  Dawes,  3  Md.  Gli.  230;  Hart- 
well  V.  Jackson,  7  Tex.  576 ;  Graham  v.  Bennet,  2  Cai.  503 ;  Heckert  v.  Hile's 
Adm'r,  90  Va.  390,  18  S.  B.  841. 

18  Story,  Confl.  Law,  §  87  et  seq. ;  Smith  v.  Kelly's  Heirs,  23  Miss.  167,  55 
Am.  Dec.  87;  Miller  v.  Miller,  91  N.  Y.  315,  43  Am.  Rep.  669;  Shedden  v. 
Patrick.  5  Paton,  194;  Ross  v.  Ross,  129  Mass.  243,  37  Am.  Rep.  321,  and 
cases  there  collated. 

19  Smith  V.  Kelly's  Heirs,  23  Miss.  167,  55  Am.  Dec.  87. 

20  Miller  v.  Miller,  91  N.  Y.  315,  43  Am.  Rep.  669;  Scott  v.  Key,  11  La. 
Ann.  232, 

*i  Burtwhistle  v.  Vardill,  6  Bing.  N.  C.  385  (as  to  this  case  see  Ross  v. 
Ross,  129  Mass.  243,  37  Am.  Rep.  321) ;  Smith  v.  Derr's  Adm'rs,  34  Pa.  126, 
75  Am.  Dec,  641;  Lingen  v.  Lingen,  45  Ala.  410.  See,  also,  Hall  v.  Gabbert, 
213  111.  208,  72  N.  E.  806. 


238  LEGITIMACY,  ILLEGITIMACY,  AND  ADOPTION.  (Ch.  8 

Presumption  of  Legitimacy — Evidence. 

The  child  of  a  married  woman  is  presumed  to  be  legitimate,  in 
the  absence  of  evidence  that  the  husband  is  not  its  father.^^  This 
presumption  is  very  strong,  and  will  not,  as  a  rule,^'  be  rebutted  by 
anything  less  than  clear  and  convincing  proof  that  sexual  intercourse 
did  not  take  place  between  the  father  and  mother  at  any  time  when, 
in  the  course  of  nature,  the  husband  might  have  been  the  father  of  the 
child,  or  that  the  father  and  mother  were  not  legally  married.^*  This 
presumption  is  one  of  fact,  and  not  of  law,  and  may  always  be  rebut- 
ted by  showing  that,  in  fact,  the  husband  could  not  have  been  the 
father.2  5     The  presumption  is  clearly  rebutted,  for  instance,  if  it  is 


22  Wallace  v.  Wallace  (Iowa)  114  N.  W.  527,  14  L.  R.  A.  (N.  S.)  544;  Lewis 
V.  Sizemore,  78  S.  W.  122,  25  Ky.  Law  Rep.  1354;  Grant  v.  Stimpson,  71) 
Conn.  617,  66  Atl.  166;  Illinois  Land  &  Loan  Co.  v.  Bonner,  75  111.  315; 
Rbyne  r.  Hoffman,  59  N.  C.  335 ;  Buckner's  Adm'rs  v.  Buckner,  120  Ky.  596, 
87  S.  W.  776 ;  Wallace  v.  Wallace  (N.  J.  Err.  &  App.)  67  Atl.  612. 

2  3  See  post,  p.  241,  as  to  rebuttal  of  presumption  of  legitimacy,  even  where 
intercourse  by  the  husband  is  shown  to  have  taken  place. 

24  Head  v.  Head,  1  Sim.  &  S.  150;  Banbury  Peerage  Case,  Id.  153;  Pend- 
rell  v.  Pendrell,  2  Strange,  925;  Hargrave  v.  Hargrave,  9  Beav.  552;  Bury  v. 
Phillpot,  2  Mylne  &  K.  349;  Plowes  v.  Bossey,  31  Law  J.  Ch.  681;  In  re 
Kelly's  Estate,  46  Misc.  Rep.  541,  95  N.  Y.  Supp.  57;  Wallace  v.  Wallace 
(N.  J.  Err.  &  App.)  67  Atl.  612;  Orthwein  v.  Thomas,  127  111.  554,  21  N.  E. 
430,  4  L.  R.  A.  434,  11  Am.  St.  Rep.  159;  Hemmenway  v.  Towner,  1  Allen 
(Mass.)  209;  Phillips  v.  Allen,  2  Allen  (Mass.)  453;  Strode  v.  Magowan's 
Heirs,  2  Bush  (Ky.)  627;  Wright  v.  Hicks,  15  Ga.  160,  60  Am.  Dec.  687; 
Watts  V.  Owens,  62  Wis.  512,  22  N.  W.  720;  Egbert  v.  Greenwalt,  44  Mich. 
245,  6  N.  W.  654,  38  Am.  Rep.  260;  Illinois  Land  &  Loan  Co.  v.  Bonner,  75 
111.  315;  Patterson  v.  Gaines,  6  How.  550,  12  L.  Ed.  553;  Cross  v.  Cross,  3 
Paige  (N.  Y.)  139 ;  Mayer  v.  Davis,  122  App.  Div.  922,  106  N.  Y.  Supp.  1041 ; 
Fox  v.  Burke,  31  Minn.  319,  17  N.  W.  861;  Kleinert  v.  Elilers,  38  Pa.  439; 
Scaulon  v.  Walshe,  81  Md.  118,  31  Ati.  498,  48  Am.  St  Rep.  488 ;  In  re  Pick- 
ens' Estate.  163  Pa.  14,  29  Atl.  875,  25  L.  R.  A.  477.  In  Strode  v.  Magowan's 
Heirs,  supra,  it  is  said :  "The  law  presumes  that  every  child  in  a  Christian 
country  is  prima  facie  the  offspring  of  a  lawful,  rather  than  a  meretricious 
union  of  the  parents,  and  that,  consequently,  the  mother,  either  by  actual 
marriage,  or  by  cohabitation  and  recognition,  was  the  lawful  wife  of  the 
father;  and,  in  the  absence  of  any  negative  evidence,  no  supplemental  proof 
of  legal  marriage  will  be  necessary  to  legitimate  the  offspring.  Mere  rumor 
is  insufficient  to  bastardize  issue,  or  require  positive  proof  of  actual  marriage. 
If  the  presumption  be  false,  repellant  facts  may  be  generally  established;  and, 
if  no  such  facts  can  be  clearly  proved,  the  presumption  from  mere  filiation 
should  stand." 

2  6  Bunel  V.  O'Day  (C.  C.)  125  Fed.  303. 


§§    112-113)  LEGITIMACY   OF   CHILDREN.  239 

shown  that  the  husband  was  physically  incapable  of  sexual  inter- 
course, so  that  he  could  not  have  begotten  the  child ;  ^®  or  that  he  was 
beyond  the  seas,  or,  though  not  beyond  the  seas,  that  he  was  away 
from  his  wife,  so  that  he  could  not  have  had  intercourse  with  her 
during  the  time  when,  in  the  course  of  nature,  the  child  must  have 
been  begotten. ^^ 

If  access  by  the  husband  is  shown,  there  is  a  very  strong  pre- 
sumption of  intercourse;  and  if  there  was  intercourse  at  such  a  time 
that  the  child  could,  in  the  course  of  nature,  have  been  begotten  by 
him,  the  presumption  is  almost  conclusive  that  he  is  the  father.^^ 
"The  modern  rule,  which  is  marked  out  by  its  good  sense,  is  that, 
to  bastardize  the  issue  of  a  married  woman,  it  must  be  shown  be- 
yond all  reasonable  doubt  that  there  was  no  such  access  as  could 
have  enabled  the  husband  to  be  the  father  of  the  child.  The  rules 
of  law,  as  laid  down  by  the  judges  on  the  questions  propounded  to 
them  by  the  house  of  lords,  in  the  Banbury  Peerage  Case,^*  are  sub- 
stantially these:  Sexual  intercourse  is  to  be  presumed  where  person- 
al access  is  not  disproved,  unless  such  presumption  is  rebutted  by  sat- 
isfactory evidence  to  the  contrary;  and,  where  sexual  intercourse  is 
presumed  or  proved,  the  husband  must  be  taken  to  be  the  father  of  the 
child,  unless  there  was  a  physical  or  natural  impossibility  that  such  in- 
tercourse should  have  produced  such  child."  *<* 


2«  Banbury  Peerage  Case,  1  Sim.  &  S.  153;  Rex  v.  Lmffe,  8  East,  193,  207; 
Hargrave  v.  Hargrave,  9  Beav.  552. 

27  Banbury  Peerage  Case,  1  Sim.  &  S.  153;  Head  v.  Head,  Id.  150;  Bos- 
vlle  V.  Attorney  General,  12  Prob.  Div.  177.  In  the  last  case  it  was  in  evi- 
dence that  the  usual  period  of  gestation  is  270  to  275  days,  and  that  the 
child  was  bom  276  or  277  days  after  the  last  opportunity  for  intercourse  be- 
tween the  husband  and  wife.  There  was  also  evidence  that  it  might  have 
been  the  child  of  another.  The  jury  found  against  legitimacy,  and  the  court 
refused  to  set  the  verdict  aside.  This  decision  illustrates  and  sustains  the 
proposition  stated  in  the  text,  but  clearly  it  goes  too  far,  and  allows  too 
slight  evidence  to  rebut  the  presumption  of  legitimacy ;  for  it  is  a  Avell- 
known  fact  that  the  period  of  gestation  may  extend  far  beyond  277  days. 
Perhaps  the  evidence  that  another  man  had  intercourse  with  the  wife  may 
have  had  controlling  weight. 

2  8  Banbury  Peerage  Case,  1  Sim.  &  S.  153;  Head  v.  Head,  Id.  150;  Rex 
V.  Luffe,  8  East,  193;    Cross  v.  Cross,  3  Paige  (N.  Y.)  139,  23  Am.  Dec.  778. 

28  1  Sim.  &  S.  153. 

80  Cross  V.  Cross,  3  Paige  (N.  Y.)  139,  23  Am.  Dec.  778. 


240  LEGITIMACY,  ILLEGITIMACY,  AND  ADOPTION.  (Ch.  8 

Mere  proof  of  the  wife's  adultery  is  not  sufficient  to  rebut  the  pre- 
sumption, in  the  absence  of  any  other  evidence  going  to  show  that 
her  husband  could  not  have  begotten  the  child.  "Although  actual 
adultery  with  other  persons  is  established  at  or  about  the  commence- 
ment of  the  usual  period  of  gestation,  yet  if  access  by  the  husband  has 
taken  place,  so  that,  by  the  laws  of  nature,  he  may  be  the  father  of 
the  child,  it  must  be  presumed  to  be  his,  and  not  the  child  of  the  adul- 
terer." " 

By  the  early  common  law  of  England,  the  rule  was  that  the  hus- 
band must  be  conclusively  presumed  to  be  the  father  of  his  wife's 
children  born  during  wedlock,  if  he  was  within  the  four  seas  at  any 
time  during  the  period  of  his  wife's  gestation,  and  was  not  physically 
incapable  of  procreation.  To  such  an  absurd  length  was  the  doctrine 
carried  that  it  was  decided  that  a  child  born  in  England  was  legiti- 
mate, although  it  clearly  appeared  that  the  husband  resided  in  Ire- 
land during  the  whole  time  of  his  wife's  pregnancy,  and  for  a  long 
time  previously,  because  Ireland  was  within  the  king's  dominion.^ ^ 
This  absurd  doctrine  was  exploded  by  Lord  Raymond  in  Pendrell  v. 
Pendrell,^^  in  1732,  where  he  held  that  the  legal  presumption  of  ac- 
cess by  the  husband  might  be  controverted.'*  And  the  rule  now  is 
well  settled,  both  in  England  and  in  this  country,  that  the  presump- 
tion is  in  all  cases  a  presumption  of  fact,  and  not  a  presumption  of 
law,  and  may  always  be  rebutted ;  and,  further  than  this,  that  it  may 
be  rebutted  even  where  access  by  the  husband  is  shown,'"  And  the 
presumption  may  be  rebutted,  not  only  by  showing  physical  incapaci- 
ty, as  stated  above,  but  by  any  other  legitimate  evidence,  including 
the  conduct  of  the  parties,  which  clearly  shows  that  there  was  no  in- 


«i  Cross  V.  Cross,  3  Paige  (N.  T.)  139,  23  Am.  Dec.  778;  Town  of  Canaan 
V.  Avery,  72  N.  H.  591,  58  Atl.  509;  Wright  v.  Hiclis,  15  Ga.  160,  60  Am.  Dec. 
GS7;  Bury  v.  Pliillpot,  2  Mylue  &  K.  349;  Ilemmeuway  v.  Towner,  1  Allen 
(Mass.)  209. 

8  2  Wright  V.  Hicks,  12  Ga.  155,  56  Am.  Dec.  451,  where  the  ancient  rule  is 
shown  by  Luiupliin,  J.    And  see  Co.  Litt.  244a;   Keg.  v.  Murrey,  1  Salli.  122. 

88  2  Strange,  925. 

8  4  Wright  V.  Hicks,  12  Ga.  155,  56  Am.  Dec.  451. 

8  5  Pendrell  v.  Pendrell,  2  Strange,  925;  Wright  v.  Hicks,  12  Ga.  155,  56 
Am.  Dec.  451 ;  Id.,  15  Ga.  160,  60  Am.  Dec.  687 ;  Cross  v.  Cross,  3  Paige  (IS. 
Y.)  139,  23  Am.  Dec.  778,  and  cases  hereafter  cited. 


§§    112-113)  LEGITIMACY    OF   CHILDREN.  241 

tercourse.^'  In  Cope  v.  Cope,'^  where  the  husband  and  wife  were 
living  separate,  and  the  wife  in  open  adultery,  the  court  said  that, 
"although  the  husband  and  wife  have  an  opportunity  for  access,  it 
would  be  monstrous  to  suppose  that  under  such  circumstances  he 
would  avail  himself  of  such  opportunity.  The  legitimacy  of  a  child, 
therefore,  born  under  such  circumstances,  could  not  be  established."  ^^ 
In  Wright  v.  Hicks,^^  it  is  said  by  Lumpkin,  J.:  "The  law  now  is  uni- 
versally understood  to  be  clearly  settled  that,  although  the  birth  of  a 
child  during  wedlock  raises  a  presumption  that  such  child  is  legiti- 
mate, yet  that  this  presumption  may  be  rebutted  both  by  direct  and 
presumptive  evidence.  And,  in  arriving  at  a  conclusion  upon  this 
subject,  the  jury  may  not  only  take  into  their  consideration  proofs 
tending  to  show  the  physical  impossibility  of  the  child  born  in  wed- 
lock being  legitimate,  but  they  may  decide  the  question  of  paternity 
by  attending  to  the  relative  situation  of  the  parties,  their  habits  of 
life,  the  evidence  of  conduct  and  of  declarations  connected  with  con- 
duct, and  to  any  induction  which  reason  suggests,  for  determining  up- 
on the  probabilities  of  the  case.  Where  the  husband  and  wife  have 
had  the  opportunity  of  sexual  intercourse,  a  very  strong  presumption 
arises  that  it  must  have  taken  place,  and  that  the  child  -in  question  is 
the  fruit ;  but  it  is  only  a  very  strong  presumption,  and  no  more.  This 
presumption  may  be  rebutted  by  evidence,  and  it  is  the  duty  of  the 
jury  to  weigh  the  evidence  against  the  presumption,  and  to  decide 
as,  in  the  exercise  of  their  judgment,  either  may  appear  to  prepon- 
derate." 

Even  where  there  was  intercourse  by  the  husband,  actually  shown 
or  presumed  from  access  in  the  absence  of  evidence  to  the  contrary, 
the  presumption  of  legitimacy  may  still  be  rebutted  by  circumstances 
showing  that  it  was  a  natural  impossibility  that  the  husband  could 
be  the  father  of  such  a  child;  as,  for  instance,  where  the  wife  and 
husband  are  white  persons,  and  an  adulterous  intercourse  is  shown  to 


8«2  Kent,  Comm.  211;  Hargrave  v.  Hargrave,  9  Beav.  552;  Plowes  v. 
Bossey,  31  Law  J.  Ck  681;  Head  v.  Head,  1  Sim.  &  S.  150;  Rex  v.  Liiffe, 
8. East.  193,  207;  Morris  v.  Davis,  5  Clarli  &  F.  163;  Aylesford  Peerage  Case, 
11  App.  Cas.  1;  Wriglit  v.  Hicks,  12  Ga.  155,  56  Am.  Dee.  451;  Id.,  15  Ga. 
160,  60  Am.  Dec.  687 ;  Van  Aernam  v.  Van  Aernam,  1  Barb.  Ch.  (N.  Y.)  375; 
Cannon  v.  Cannon,  7  Humph.  (Tenn.)  410;    Cope  v.  Cope,  1  Moody  &  R.  269. 

37  1  Moody  &  R.  269. 

3  6  See  McLoud  v.  State,  122  Ga.  :Jl)3,  50  S.  E.  145. 

88  12  Ga.  155,  56  Am.  Dec.  451 ;  15  Ga.  160,  60  Am.  Dec.  687. 
TLFF.P.&  D.Rel.(2d  Ed.)— 16 


.242  LEGITIMACY,  ILLEGITIMACY,  AND   ADOPTION.  (Ch.  8 

have  existed  between  the  wife  and  a  negro  at  or  about  the  time  when 
the  child  must  have  been  begotten,  and  the  color  and  other  physiologi- 
cal developments  of  the  child  demonstrate  its  African  paternity.*" 

The  policy  of  the  law  does  not  allow  either  the  husband  or  the 
wife  to  testify  as  to  the  fact  of  access  or  nonaccess,  whether  the 
testimony  relates  to  access  before  or  after  marriage.  "Nonaccess 
cannot  be  proved  by  either  the  husband  or  the  wife,  whether  the  ac- 
tion be  civil  or  criminal,  or  whether  the  proceeding  is  one  of  settle- 
ment or  bastardy,  or  to  recover  property  claimed  as  heir  at  law."  *^ 
In  Goodright  v.  Moss,*^  where  the  question  of  legitimacy  arose  in 
an  action  of  ejectment,  Lord  Mansfield  said:  "As  to  the  time  of  the 
birth,  the  father  and  mother  are  the  most  proper  witnesses  to  prove 
it.  But  it  is  a  rule  founded  in  decency,  morality,  and  policy  that 
they  shall  not  be  permitted  to  say  after  marriage  that  they  have 
had  no  connection,  and  therefore  that  .the  offspring  is  spurious." 

ADOPTION   OF   CHILDREN. 

114.  By  statute,  in  most  jurisdictions,  but  not  at  common  la\xr,  a 
person  may  adopt  a  cliild;  and  in  snob,  a  case,  unless  tliere 
are  statutory  provisions  to  tlie  contrary,  tlie  rights,  duties, 
and  obligations  arising  from  the  artificial  relation  •will  be 
substantially  the  same  as  those  arising  from  the  natural  re- 
lation of  parent  and   child. 

The  legal  adoption  by  one  person  of  the  offspring  of  another,  giv- 
ing him  the  status  of  a  child  by  adoption,  was  unknown  to  the  com- 
mon law.*^     It  was  recognized,  however,  by  the   Roman  law,  and 

40  See  Whisterlo's  Case,  cited  in  Cross  v.  Cross,  3  Paige  (N.  T.)  139,  23  Am. 
Dec.  778;  Wright  v.  Hicks,  12  Ga,  155,  56  Am.  Dec.  451;  Bullock  v.  Knox, 
9G  Ala.  195,  11  South.  339. 

*i  Dennison  v.  Page,  29  Pa.  420,  72  Am.  Dec.  G44.  And  see  Rex  v.  Luffe, 
8  East,  198 ;  Rex  v.  Rook,  1  Wils.  340 ;  Goodright  v.  Moss,  2  Cowp.  591 ; 
Parker  v.  Way,  15  N.  H.  45;  People  v.  Overseers  of  Poor  of  Town  of  Ontario, 
15  Barb.  (N.  Y.)  280 ;  Mink  v.  State,  60  Wis.  583.  19  N.  W.  445,  50  Am.  Rep. 
386;  Watts  v.  Owens,  62  Wis.  512,  22  N.  W.  720;  Egbert  v.  Greenwalt,  44 
Mich.  245,  6  N.  W.  654,  38  Am.  Rep.  260.  And  the  rule  also  applies,  so  as  to 
exclude  declarations  of  husband  or  wife,  unless  they  are  admissible  because 
connected  with,  and  explanatory  of,  conduct.  Bowles  v.  Bingham,  2  Munf. 
(Va.)  442,  5  Am.  Dec.  497. 

4  2  2  Cowp.  591. 

4  3  Albring  v.  Ward,  137  Mich.  352,  100  N.  W.  609;  Morrison  v.  Sessions' 
Estate,  70  Mich.  297,  38  N.  W.  249,  14  Am.  St  Rep.  500;    In  re  Huyck,  49 


§   114)  ADOPTION   OF   CHILDREN.  243 

exists  in  many  countries  on  the  continent  of  Europe,  which  derive 
their  jurisprudence  from  that  law.  It  was  long  ago  introduced, 
from  the  law  of  France  or  of  Spain,  into  Louisiana  and  Texas,  and 
more  recently,  at  various  times  and  by  different  statutes,  into  most 
of  the  other  states.** 

These  statutes  vary  widely  in  the  different  states,  and  therefore 
no  general  statement  of  their  provisions  can  be  made.  They  gen- 
erally prescribe  what  persons  may  adopt — as  any  person  being  an 
inhabitant  of  the  state,  aged  21,  or,  in  some  states  of  a  greater  age ; 
any  person  competent  to  make  a  will;  any  adult,  etc.  In  most 
states  the  adopting  person's  husband  or  wife,  if  he  or  she  is  mar- 
ried, must  consent.  The  statutes  also  prescribe  the  persons  who 
may,  and  those  who  may  not,  be  adopted.  The  process  by  which 
the  adoption  may  be  effected  is  also  prescribed — as  by  petition  to 
the  court  in  some  states,  or  by  deed  in  others,  etc.  If  the  child  has 
natural  parents  living,  their  consent,  except  under  particular  cir- 
cumstances, is  generally  required.  As  the  right  to  adopt  depends 
entirely  upon  the  statute,  its  provisions  must  be  strictly  complied 
with.*» 

Status  of  Adoptive  Parent  and  Child. 

Where  the  artificial  relation  of  parent  and  child  is  created  by 
adoption  under  the  statutes,  the  relation  will,  by  the  express  pro- 
visions of  most  of  the  statutes,  and  even  independently  of  such 
express  provisions,  give   rise  to   substantially  the   same   rights,   du- 


Misc.  Rep.  391,  99  N.  Y.  Supp.  502.  "The  law  of  England,  strictly  speaking, 
knows  nothing  of  adoption,  and  does  not  recognize  any  rights,  claims,  or  du- 
ties arising  out  of  such  a  relation,  except  as  arising  out  of  an  express  or 
implied  contract.  But,  in  so  far  as  the  court  of  chancery  will,  in  the  inter- 
ests of  the  children,  enforce  the  waiver  or  abandonment  of  the  control  of  the 
father  (or  mother),  up  to  that  point  it  might  be  said  to  countenance  the 
claim  of  the  adoptive  parent,  not  on  the  ground  of  any  right  in  the  latter, 
but  of  the  material  well-being  of  the  infant"  Eversley,  Dom.  Rel.  539.  And 
see  Ross  v.  Ross,  129  Mass.  243.  262,  37  Am.  Rep.  321. 

4-1  Ross  V.  Ross,  129  Mass.  243,  37  Am.  Rep.  321. 

4  5  Bresser  v.  Saarman,  112  Iowa,  720,  84  N.  W.  920.  But  see  In  re  Brown's 
Adoption,  25  Pa.  Super.  Ct.  259,  where  it  is  said  that  while  the  statutes  au- 
thorizing adoption  are  in  derogation  of  the  common  law,  and  for  this  reason 
are  in  some  respects  to  be  strictly  construed,  yet  their  constrxiction  should 
not  be  narrowed  so  closely  as  to  defeat  the  legislative  Intent,  which  may  be 
made  obvious  by  their  terms  and  by  the  mischief  to  be  remedied  by  their 
enactment. 


244  LEGITIMACY,  ILLEGITIMACY,  AND   ADOPTION.  (Cll.  8 

ties,  and  liabilities  as  arise  out  of  the  natural  relation.  The  law, 
cannot,  and  does  not  purport  to,  do  the  work  of  nature,  and  create 
one  a  child  who  by  nature  is  a  stranger.  But  it  can  and  does  fix 
the  status  of  the  adoptive  child  to  the  adoptive  parent  as  substan- 
tially the  same  as  the  status  of  a  natural  child.  By  the  act  of 
adoption,  the  child  becomes,  in  a  legal  sense,  the  child  of  the  adopt- 
ive parent.  The  general  effect  of  adoption,  therefore,  is,  with  few 
exceptions,  to  place  the  parties  in  the  legal  relation  of  parent  and 
child,  with  all  the  legal  consequences.  The  law  declares  the  status, 
and  from  the  status,  as  a  necessary  consequence,  spring  the  ordi- 
nary rights,  duties,  and  liabilities  which  arise  out  of  the  same  status 
created  by  nature.*' 

The  natural  parents  are  divested  of  all  personal  rights  in  respect 
to  the  child,  and  are  relieved  of  all  legal  duties  as  its  parents. 
They  lose,  for  instance,  and  the  adoptive  parent  acquires,  the  right 
to  the  child's  custody  and  control,  and  to  its  services  and  earn- 
ings;*^ and  they  are  relieved  from,  and  the  adoptive  parent  as- 
sumes, the  duties  of  maintenance,  education,  etc. 

The  right  of  inheritance  by  and  from  adopted  children  is  very 
generally  regulated  by  the  statutes,  and  the  statutes,  in  this  as  in 
other  respects,  vary  in  the  different  states.  In  many  states  the 
adopted  child  becomes  the  heir  of  the  adoptive  parent  in  all  re- 
spects as  if  he  were  a  natural  child,*^  except,  generally,  that  he  can- 
not take,  by  representation,  from  the  adoptive  parent's  kindred,  ei- 
ther lineal  or  collateral.**     In  some  states  it  is  expressly  provided 

46  Humphries  v.  Davis,  100  Ind.  274,  50  Am.  Rep.  788 ;  Paul  v.  Davis,  100 
Ind.  422 ;  Lunay  v.  Vantyne,  40  Vt.  503 ;  Sewall  v.  Roberts,  115  Mass.  2G2 ; 
Burrage  v.  Briggs,  120  Mass.  103 ;  Rives  v.  Sneed,  25  Ga.  612 ;  Moran  v. 
Stewart,  122  Mo.  295,  26  S.  W.  962. 

47  Lunay  v.  Vantyne,  40  Vt.  503. 

48  See  Barnes  v.  Allen,  25  Ind.  222;  Virgin  v.  Manvick.  97  Me.  578,  55  Atl. 
520;  Davis  v.  Krug,  95  Ind.  1;  Humphries  v.  Davis,  100  Ind.  274,  50  Am.  Rep. 
788 ;'  Sewall  v.  Roberts,  115  Mass.  262 ;  Ross  v.  Ross,  129  Mass.  243,  37  Am. 
Rep.  321 ;  Wagner  v.  Varner,  50  Iowa,  532 ;  Keegan  v.  Gk^raghty,  101  111.  2G ; 
Glos  v.  Sankey,  148  111.  536,  36  N.  E.  628,  23  L.  R.  A.  665,  39  Am.  St.  Rep. 
196;  Com.  v.  Nancrede,  32  Pa.  3S9;  Schafer  v.  Eneu,  54  Pa.  304;  Moran  v. 
Stewart,  122  Mo.  295,  26  S.  W.  962.  But  under  the  Mississippi  statute  (Rev. 
Code  1880,  §  1490),  requiring  the  benefits  to  be  conferred  to  be  expressly  set 
out,  adoption  does  not  include  heirsliip,  unless  specifically  conferred.  Beaver 
V.  Crump,  76  Miss.  34,  23  South.  432. 

4  9  See  Keegan  v.  Geraghty,  101  111.  26.  And  see,  also,  Van  Derlyn  v.  Mack, 
137  Mich.  146,  100  N.  W.  278,  66  L.  II.  A.  437,  109  Am.  St.  Rep.  669. 


§    114)  ADOPTION    OF   CHILDREN.  245 

that  he  can  also  inherit  from  his  natural  parents  or  kindred,  though 
such  a  provision  would  not  be  necessary  to  so  entitle  him."^"  In 
a  few  states  the  statute  provides  expressly  for  inheritance  by  the 
adopting  from  the  adopted  person.*^^  In  some  states,  by  express 
provision,  adoption  has  no  effect  whatever  upon  the  rights  of  in- 
heritance or  descent. 

As  to  the  right  of  inheritance  by  and  from  adopted  persons, 
where  the  statute  is  silent  on  the  subject,  the  authorities  are  not 
very  clear.  In  Indiana,  where  the  statute  was  silent  on  this  ques- 
tion, it  was  held,  after  a  thorough  consideration,  and  a  full  review 
of  the  authorities,  that  where  an  adopted  child  acquires  property 
by  inheritance,  not  from  his  natural  parents  or  kindred,  but  from 
his  adoptive  mother,  such  property,  on  the  death  of  the  child,  will 
go  to  his  adoptive  father,  to  the  exclusion  of  his  natural  parents 
or  kindred.*^^  The  court  was  influenced  by  the  consideration  that 
this  was  only  just,  in  view  of  the  fact  that  the  property  had  been 
acquired  by  the  child  from  its  adoptive  parent,  and  not  from  its 
natural  parent,  and  that  equity  has  a  potent  influence  in  the  con- 
struction of  statutes.  It  was  also  considered,  however,  on  princi- 
ple and  on  authority,  that  this  result  followed  necessarily  from  the 
legal  status  of  adoptive  parent  and  child.  The  status  of  an  adopt- 
ed child,  it  was  said,  for  all  legal  purposes,  and  as  to  property 
inherited  by  it  from  an  adoptive  parent,  is  that  of  a  natural  child. 

In  the  case  just  referred  to,  the  court  expressly  limited  its  de- 
cision to  the  facts,  and  it  was  intimated,  if  not  virtually  conceded, 
that  property  inherited  by  a  child  from  its  natural  parent  would  go 
back  to  its  natural  kindred,  to  the  exclusion  of  its  adoptive  parent; 
and  in  some  cases  it  has  been  expressly  so  held.°^ 

In  Missouri  it  was  held  that,  though  the  legal  relation  of  parent 
and  child  exists  between  adoptive  parent  and  child,  yet,  as  the 
statute  vests  the  right  of  inheritance  in  the  child  only,  the  adoptive 


BO  Wagner  v.  Vamer,  50  Iowa,  532;  Humphries  v.  Davis,  100  Ind.  274,  5C 
Am.  Rep.  788 ;  Clarkson  v.  Hatton,  143  Mo.  47,  44  S.  W.  761,  39  L.  R.  A.  748 
65  Am.  St  Rep.  635. 

01  See  Swick  v.  Coleman,  218  111.  33,  75  N.  E.  807,  affirming  Coleman  v 
Swick,  120  111.  App.  381. 

5  2  Humphries  v.  Davis,  100  Ind.  274.  50  Am.  Rep.  V88  (collecting  and  re 
viewing  the  cases).    But  see  Hole  v.  Robbins,  53  Wis.  514,  10  N.  W.  617. 

5  3  Hole  V.  Robbins,  53  Wis.  514,  10  N.  W.  617.  And  see  dictum  in  Hum 
phries  v.  Davis,  100  Ind.  274,  50  Am.  Rep.  788. 


246  LEGITIMACY,  ILLEGITIMACY,  AND   ADOPTION.  (CIl.  8 

parent  cannot  inherit  from  the  adopted  child ;  and  that,  even  where 
the  child  has  acquired  property  from  an  adoptive  parent  under  the 
statute,  the  property,  on  the  child's  death  intestate,  goes  to  its 
natural  parents  or  kinsmen,"*  But  this  decision  has  been  very  just- 
ly criticised.'*^ 

In  Massachusetts  the  doctrine  that  the  legal  status  of  adoptive 
parent  and  child  is  the  same  in  substance  as  that  of  natural  parent 
and  child  was  carried  so  far  as  to  hold  that  an  adopted  child  took 
as  a  child  under  a  residuary  clause  of  the  adoptive  mother's  will, 
where  the  specific  legacy  had  lapsed.**' 


STATUS   OF  ILIiEGITOIATE  CHILDREN. 

115.  The  natural  relation  bettveen  a  parent  and  his  illegitimate 
children  does  not,  at  common  la,xir,  give  rise  to  those  rights 
and  duties  which  pertain  to  the  legal  status  of  parent  and 
child.  But  to  some  extent  the  law  recognizes  bastards  as 
children.      Thus: 

(a)  The   mother  is  entitled   to  the   custody  and   services   of  her  il- 

legitimate child,  as  against  the  father  or  strangers;  but  the 
w^elfare  of  the  child  may  require  the  court  to  axcard  its  cus- 
tody to   another. 

(b)  The   child's   domicile  is   determined   by  that   of  its  mother. 

(c)  At    common   law^,    a    bastard    cannot   inherit,    and    can   have    no 

heir  except  of  his  ow^n  body;  but  this  rule  has  been  to  a  great 
extent  modified  by  statute. 

(d)  The    putative    father    is    usider   no    legal    obligation   to   support 

his  illegitimate  child,  but  now,  by  statute,  he  may  very  gen- 
erally  be   compelled   to    do   so. 

The  relation  between  a  parent  and  his  illegitimate  offspring  does 
not  give  rise  to  the  rights  and  obligations  arising  from  the  relation 
of  a  parent  and  his  legitimate  child.  At  least,  it  is  so  at  common 
law."*^  In  the  absence  of  statutory  provision,  the  common  law  scarce- 
ly recognizes  the  father  of  a  bastard,  if,  indeed,  it  recognizes  him 
at  all.     The  courts,  however,  for  some  purposes,  do  recognize  the 


6  4  Reinders  v.  Koppelmann,  68  Mo.  482,  30  Am.  Rep.  802. 
6  6  Humphries  v.  Davis,  100  Ind.  274,  50  Am.  Rep.  788. 
60  Burrage  v.  Brig^'s,  120  Mass.  103. 
6  7  Simmous  v.  Bull,  21  Ala.  501,  56  Am.  Dec.  257. 


I 


§    115)  STATUS   OF   ILLEGITIMATE    CHILDREN.  247 

blood  relationship  between  a  bastard  and  its  mother.  They  recog- 
nize the  mother's  right  to  the  custody  and  control  of  it,  and  will 
generally  award  her  the  custody  as  against  strangers,  and  even 
as  against  the  father."*^  The  mother  can  also  transfer  her  rights 
in  this  respect  to  another.^'  The  rights  of  the  mother,  however, 
or  of  one  to  whom  she  has  transferred  the  custody  of  the  child, 
are  not  absolute  and  beyond  control.  As  in  the  case  of  a  legitimate 
child,  so  in  the  case  of  a  bastard,  the  welfare  of  the  child  will  be 
the  controlling  consideration,  where  a  question  arises  as  to  its  cus- 
tody."* The  rules  applicable  in  the  case  of  legitimate  children  ®^ 
are  equally  applicable  here.  On  the  death  of  the  mother  of  a  bas- 
tard, it  becomes  an  orphan  in  law,  even  though  its  father  is  living, 
and  claims  its  custody.*^ 

The  domicile  of  a  bastard  is  determined  by  that  of  its  mother."" 
In  the  absence  of  proof  of  her  domicile,  the  child  will  be  presumed 
to  be  settled  in  the  place  of  its  birth.®* 

At  common  law  the  rights  of  an  illegitimate  child  are  few.  Black- 
stone  says:  "The  rights  are  very  few,  being  only  such  as  he  can 
acquire;    for  he  can  inherit  nothing,  being  looked  upon  as  the  son 


08  Reg.  V.  Nash,  10  Q.  B.  Div.  454;  Rex  v.  New,  20  Times  Law  R.  583; 
Reg.  V.  Bamardo,  24  Q.  B.  Div.  283 ;  Ex  parte  Knee,  1  Bos.  &  P.  (N.  R.)  148 ; 
Marshall  v.  Reams,  32  Fla.  499,  14  South.  95,  37  Am.  St.  Rep.  118;  Aycock 
V.  Hampton,  84  Miss.  204,  36  South.  245,  65  L.  R.  A.  689,  105  Am.  St.  Rep. 
424;  Lipsey  v.  Battle,  SO  Ark.  287,  97  S.  W.  49;  Purinton  v.  Jamrock,  195 
Mass.  187,  80  N.  E.  802 ;  Friesner  v.  Symonds.  46  N.  J.  Eq.  521,  20  Atl.  257; 
Robalina  v.  Armstrong,  15  Barb.  (N.  Y.)  247;  Wright  v.  Wright,  2  Mass. 
109;  Carpenter  v.  Whitman,  15  Johns.  (N.  Y.)  208;  Com.  v.  Fee,  6  Serg.  & 
R.  (Pa.)  255;  Town  of  Hudson  v.  Hills,  8  N.  H.  417;  Lawson  v.  Scott,  1  Yerg. 
(Tenn.)  92;  Adams  v.  McKay,  36  Ga.  440;  Pratt  v.  Nitz,  48  Iowa,  33.  But 
see  Hesselman  v.  Haas,  (N.  J.  Ch.)  64  Atl.  165,  holding  that  as  against  any 
person  except  the  putative  father,  the  mother  of  a  natural  child  has  the  natu- 
ral right  to  its  custody. 

69  2  Marshall  v.  Reams,  32  Fla.  490,  14  South.  95,  37  Am.  St.  Rep.  118. 

60  Reg.  V.  Nash,  10  Q.  B.  Div.  454 ;  Marshall  v.  Reams,  32  Fla.  499,  14 
South.  95,  37  Am.  St.  Rep.  118 ;    In  re  Lloyd,  3  Man.  &  G.  547. 

«i  Post,  p.  267. 

92  Friesner  v.  Symonds,  46  N.  J.  Eq.  521,  20  Atl.  257. 

63  2  Kent,  Comm.  214;   Dicey,  Dom.  5. 

6*  Guardians  of  Headiugton  Union  v.  Guardians  of  Ipswich  Union,  25  Q. 
B.  Div.  143. 


248  LEGITIMACY,  ILLEGITIMACY,  AND   ADOPTION.  (Ch.  8 

of  nobody,  and  sometimes  called  'filius  nullius,'  sometimes  'filiiis 
populi.'  "  *°  At  common  law  he  cannot  inherit  property  from  any 
one,  for,  while  his  blood  relationship  to  his  mother  is  recognized 
for  certain  purposes,  he  has  no  legal  status  as  child  and  heir.^* 
Nor  can  he  have  heirs  except  of  his  own  body.®^  "A  bastard," 
says  Kent,  "being,  in  the  eye  of  the  law,  nullius  filius,  or,  as  the 
civil  law,  from  the  difficulty  of  ascertaining  the  father,  equally  con- 
cluded, patrem  habere  non  intelliguntur,  he  has  no  inheritable  blood, 
and  is  incapable  of  inheriting  as  heir,  either  to  his  putative  fa- 
ther, or  his  mother,  or  to  any  one  else ;  nor  can  he  have  heirs  but 
of  his  own  body.  The  rule  of  the  common  law,  so  far  at  least 
as  it  excludes  him  from  inheriting  as  heir  to  his  mother,  is  sup- 
posed to  be  founded  partly  in  policy,  to  discourage  illicit  commerce 
between  the  sexes."  *® 

The  harsh  rules  of  the  common  law,  in  so  far  as  they  rendered  a 
bastard  incapable  of  inheriting  as  heir,  and  of  having  heirs  except  of 
his  own  body,  have  been  greatly  modified  by  statute  in  this  country. 
In  most  states  it  is  now  provided  by  statute  that  bastards  shall  in- 
herit from  or  through  their  mother  share  and  share  alike  with  her 
legitimate  children.®^  "This  relaxation  in  the  laws  of  so  many  of  the 
states,  of  the  severity  of  the  common  law,  rests  upon  the  principle 
that  the  relation  of  parent  and  child,  which  exists  in  this  unhappy 
case  in  all  its  native  and  binding  force,  ought  to  produce  the  ordinary 
legal  consequences  of  that  consanguinity."  ^°     So,  also,  in  most  states. 


36  1  Bl.  Comm.  459. 

66  1  Bl.  Comm.  459;  2  Kent,  Comm.  213;  Houghton  v.  Dickinson,  196  Mass. 
389,  82  N.  E.  481 ;  Berry  v.  Powell  (Tex.  Civ.  App.)  105  S.  W.  345 ;  Hicks  v. 
Smith,  94  Ga.  809,  22  S.  E.  153.  The  civil  law  was  different  as  regards  in- 
heritance from  the  mother.    Pettus  v.  Dawson,  82  Tex.  18,  17  S.  W.  714. 

67  1  Bl.  Comm.  459;  2  Kent,  Comm.  213;  Cooley  v.  Dewey,  4  Pick.  (Mass.) 
93,  16  Am.  Dec.  326;  Stover  v.  Boswell's  Heir,  3  Dana  (Ky.)  233;  Barwick 
V.  Miller,  4  Desaus.  (S.  C.)  434;  Bent's  Adm'r  v.  St.  Vrain,  30  Mo.  208; 
Croan  v.  Phelps'  Adm'r,  94  Ky.  213,  21  S.  W.  874,  23  L.  R.  A.  753. 

68  2  Kent,  Comm.  213. 

6  9  Stim.  Am.  St.  Law,  §  3151.  See  Alexander's  Adm'r  v.  Alexander,  31 
Ala.  241;  Neil's  Appeal,  92  Pa.  193;  Stover  v.  Boswell's  Heir,  3  Dana  (Ky.) 
233 ;  Jackson  v.  Collins,  16  B.  Mon.  (Ky.)  214 ;  McGuire  v.  Brown,  41  Iowa, 
G50. 

TO  2  Kent,  Comm.  213. 


§    115)  STATUS   OF   ILLEGITIMATE   CHILDREN.  249 

by  statute,  bastards  may  not  only  have  heirs  of  their  own  body, 
as  at  common  law,  but  they  may  transmit  to  their  mother  and  her 
kin,  as  if  legitimate.''^  In  some  states,  bastards  may  not  only  in- 
herit from  their  mother,  but  they  may  represent  her  so  as  to  inherit, 
from  her  kin.'^^  In  other  states  they  cannot  inherit  except  from  the 
mother.'^*  In  some  states,  on  the  failure  of  legitimate  heirs,  a  bas- 
tard  may  inherit  from  his  father. 

At  common  law  the  father  is  under  no  legal  obligation  to  maintain 
his  illegitimate  children,  for  as  has  been  seen,  in  the  eye  of  the  com- 
mon law,  an  illegitimate  child  has  no  father,  but  is  regarded  as  nul- 
ius  filius.'^*  But  the  father  is  liable  on  an  express  promise  to  pay  for 
support  and  maintenance  to  be  furnished  to  his  illegitimate  children, 
and  on  an  implied  contract  to  pay  therefor  where  he  has  adopted 
the  child  as  his  own,  and  acquiesced  in  any  particular  disposition  of 


Ti  Stim.  Am.  St.  Law,  §  3154.  See  Garland  v.  Harrison,  8  Leigh  (Va.)  368 ; 
Neil's  Appeal,  02  Pa.  193 ;  Reese  v.  Starner,  106  Md,  50,  66  Atl.  443 ;  Berry 
V.  Powell  (Tex.  Civ.  App.)  105  S.  W.  345;    Dickinson's  Appeal,  42  Conn.  491, 

19  Am.  Rep.  553;  Ellis  v.  Hatfield.  20  Ind.  101;  Nolasco  v.  Lurty,  13  La. 
Ann.  100;   Remmington  v.  Lewis,  8  B.  Mon.  (Ky.)  606;   Blankenship  v.  Ross, 

95  Ky.  306,  25  S.  W.  268.  A  statute  providing  that  "bastards  shall  be  capable 
of  inheriting  and  transmitting  an  inheritance  on  the  part  of  or  to  the  mother" 
does  not  provide  for  the  transmission  of  a  bastard's  estate  through  the  mother 
and  on  to  her  collateral  kindred.  Groan  v.  Phelps'  Adm'r,  94  Ky.  213,  21  S. 
W.  874,  23  L.  R.  A.  753.  See,  also,  Blair  v.  Adams  (C.  C.)  59  Fed.  243.  Bas- 
tard children  of  the  same  mother  may  inherit  from  each  other  through  their 
mother.  Berry  v.  Tullis  (Tex.  Civ.  App.)  105  S.  W.  348;  In  re  Lutz's  Estate, 
43  Misc.  Rep.  230,  88  N.  Y.  Supp.  556. 

7  2  See  Doe  v.  Bates,  6  Blackf.  (Ind.)  533;  Waggoner  v.  Miller,  26  N.  O. 
480;  Berry  v.  Powell  (Tex.  Civ.  App.)  105  S.  W.  345;  Keech  v,  Enriquez, 
28  Fla.  597,  10  South.  91. 

7  3  See  Jackson  v.  Jackson,  78  Ky.  390,  39  Am.  Rep.  246;  McSurley  v.  Ven- 
ters, 104  S.  W.  365,  31  Ky.  Law  Rep.  963;    Overton  v.  Overton.  123  Ky.  311, 

96  S.  W.  469 ;  Reynolds  v.  Hitchcock,  72  N.  H.  340,  56  Atl.  745 ;  Brown  v. 
Kerby,  9  Humph.  (Tenn.)  460.  A  statute  making  bastards  capable  of  inherit- 
ing "on  the  part  of  their  mother"  does  not  enable  a  bastard  to  inherit  from  col- 
lateral kindred  of  his  mother.    Williams  v.  Kimball,  35  Fla.  49,  16  South.  783. 

20  L.  R.  A.  746,  48  Aju.  St.  Rep.  238.  But  see  Berry  v.  Powell  (Tex.  Civ. 
App.)  105  S.  W.  345. 

7  4  Moncrief  v.  Ely,  19  Wend.  (N.  Y.)  405;  Todd  v.  Weber,  95  N.  Y.  181,  47 
Am.  Rep.  20;  Simmons  v.  Bull,  21  Ala.  501,  56  Am.  Dec.  257;  Glidden  v. 
Nelson,  15  111.  App.  297 ;  Nine  v.  Starr,  8  Or.  49;  Wiggins  v.  Keizer,  6  Ind. 
252;   Duncan  v.  Pope,  47  Ga.  445. 


250  LEGITIMACY,  ILLEGITIMACY,  AND   ADOPTION.  (Ch.  8 

it/"     It  has  been  held  that  the  mother,  even  in  the  absence  of  a  stat- 
ute, is  bound  to  maintain  her  illegitimate  child.''* 

In  England,  and  in  most  of  our  states,  statutes  have  been  enacted 
making  the  father  chargeable  with  the  maintenance  of  his  illegiti- 
mate children,  for  the  purpose  of  relieving  the  parish  or  county  of 
the  expense.  And  in  most  states,  by  statute,  the  mother  has  a  com- 
pulsory remedy,  generally  known  as  "bastardy  proceedings,"  to  com- 
pel the  father  to  support  the  child/ ^ 


7  6  Todd  V.  Weber,  95  N.  T.  181,  47  Am.  Rep.  20,  and  cases  cited  therein; 
Knowlman  v.  Bluett,  L.  R.  9  Exch.  307 ;  HiclvS  v.  Gregory,  19  Law  J.  C.  P. 
81;  Wiggins  v.  Keizer,  6  Ind.  252;  Burton  v.  Belvin,  142  N.  C.  151,  55  S.  E. 
71 ;  Moncrief  v.  Ely,  19  Wend.  (N.  Y.)  405 ;  Birdsall  v.  Edgerton,  25  Wend. 
(N.  Y.)  619;  Hesketti  v.  Gowing,  5  Esp.  131.  But  not,  it  seems,  where  the 
woman  was  married  to  another  at  the  time  the  child  was  begotten.  Vetten 
V.  Wallace,  39  111.  App.  390.  An  agreement  by  a  man  to  pay  for  the  main- 
tenance of  children  which  may  result  from  future  illicit  cohabitation  is  void, 
because  of  its  immoral  tendency.  Clark.  Cont.  439 ;  Crook  v.  Hill,  3  Ch.  Div. 
773.  But  such  an  agreement  as  to  children  already  born,  or  as  to  a  child  in 
ventre  sa  mere,  is  valid ;  the  illicit  intercourse  in  such  case  being  past. 
Clark,  Cont.  439;  Crook  v.  Hill,  3  Ch.  Div.  773.  The  moral  obligation  of  a 
father  to  support  his  illegitimate  children  is  a  sufficient  consideration  for  his 
bond  so  to  do.    Trayer  v.  Setzer,  72  Neb.  845,  101  N.  W.  989. 

7  0  Wright  V.  Wright,  2  Mass.  109;  Friesuer  v.  Symonds,  4G  N.  J.  521,  20 
Atl.  257,  259;  Nine  v.  Starr,  8  Or.  49 ;  Carpenter  v.  Wliitman,  15  Johns.  (N. 
Y.)  208;  People  v.  Landt,  2  Johns.  (N.  Y.)  375;  Com.  v.  Fee,  6  Serg.  &  R. 
(Pa.)  255;  Town  of  Hudson  v.  Hills,  8  N.  H.  417.  And  see  People  v.  Cham- 
berlain (Sup.)  106  N.  Y.  Supp.  149  (under  statute). 

7T  St.  18  Eiiz.  c.  3;  4  &  5  Wm.  IV.  c.  76,  §  72;  Mann  v.  People,  35  HI.  467; 
Maloney  v.  People,  38  111.  62;  State  v.  Evans,  19  Ind.  92 ;  Scantland  v.  Com., 
6  J.  J.  Marsh.  (Ky.)  585;  Bailey  v.  Chesley,  10  Cush.  (Mass.)  284;  Wilbur 
V.  Crane,  13  Pick.  (Mass.)  284 ;  People  v.  Harty,  49  Mich.  490,  13  N.  W.  829 ; 
State  V.  Nichols,  29  Minn.  357,  13  N.  W.  153 ;  State  v.  Mushied,  12  Wis.  561 ; 
Van  Tassel  v.  State,  59  Wis.  351,  18  N.  W.  328.  There  is  a  valuable  note 
on  this  subject  covering,  also,  the  procedure,  evidence,  etc,  under  the  statutes, 
in  56  Am.  Dec.  210-223. 


§    116)  DUTIES  AND  LIABILITIES  OF  PARENTS.  251 

CHAPTER  IX. 
DUTIES  AND  LIABILITIES  OF  PARENTS. 

116.  Parent's  Duty  to  Maintain  Cliild. 

117.  Maintenance  in  Equity — Allowance  Out  of  Child's  Estate. 

118.  Parent's  Duty  to  Protect  Cbild. 

119.  Parent's  Duty  to  Educate  Child. 

120.  Contracts  by  Child  as  Parent's  Agent. 

121.  Parent's  Liability  for  Child's  Torts. 

122.  Parent's  Liability  for  Child's  Crimes. 

PARENT'S    DUTY    TO    MAINTAIN    CHILD. 

116.  Whether  there  is  a  legal  duty  on  the  part  of  the  parent,  at 
common  la.vsr,  to  maintain  his  minor  child,  so  as  to  render 
him  liable  for  necessaries  furnished  the  child,  is  a  question 
upon  \(rhich  the  authorities  are  conflicting. 

(a)  In  England,  and  in  some   states,  it  is  held  that  there  is  only  a 

moral  obligation,  in  the  absence  of  a  statute,  and  that  there 
is  no  liability  for  necessaries  unless  there  is  a  promise  In 
fact  to  pay  for  them,  express^  or  implied.  But  even  in  these 
jurisdictions  it  is  usually  provided  by  statute  that  the  mu- 
nicipal authorities  may  compel  the  parent,  if  he  is  able  to 
to  do  so,  to  maintain  his  child.  In  most  states  it  is  a  penal 
ofense  if  the  parent  neglect  to  support  his  minor  child. 

(b)  In  other  states  it  is  held  that  the  obligation  is  a  legal  one,  and 

that  there  is  a  liability  for  necessaries,  in  case  of  nonsupport 
by  the  parent,  in  the  absence  of  any  promise  in  fact,  or  else 
that,  if  the  obligation  is  merely  a  moral  one,  it  is  neverthe- 
less suf&cicnt  to  create  such  a  liability. 

Morally,  of  course,  a  parent  is  bound  to  support  his  children,  if 
they  are  unable  to  support  themselves.  In  most  jurisdictions  this 
moral  obligation  is  expressly  made  a  legal  obligation  by  statute.  It 
is  provided  by  the  statute  of  43  Eliz.  c.  2,  that  the  father  and  mother, 
grandfather  and  grandmother,  of  poor,  old,  blind,  lame,  and  impotent 
persons,  shall  maintain  them,  if  of  sufBcient  ability,  but  that  no  per- 
son is  bound  to  provide  for  his  children  unless  they  are  impotent,  or 
unable  to  work,  through  infancy,  disease,  or  accident,  and  then  that 
he  is  only  obliged  to  furnish  them  with  necessaries.  Statutes  more 
or  less  similar  to  this,  and  having  the  same  object,  have  been  enacted 


252  DUTIES  AND   LIABILITIES  OF  PARENTS.  (Ch.  9 

in  many  of  our  states.*  Even  where  this  is  not  the  case,  it  would  seem 
that  the  EngUsh  statute  is  to  be  regarded  as  in  force,  for  it  is  old 
enough  to  have  become  a  part  of  our  common  law,  and  is  applicable 
to  our  conditions.  In  most  states,  by  statute,  it  is  made  a  penal  of- 
fense for  a  parent  to  abandon  his  minor  children,  or  neglect  to  sup- 
port them.^ 

Whether  or  not,  at  common  law  and  independently  of  statutory 
provision,  a  parent  is  under  a  legal  obligation  to  support  and  main- 
tain his  children,  or  whether  it  is  merely  a  natural  duty,  binding  in 
morals  only,  is  a  question  upon  which  the  authorities  are  conflicting. 
The  later  English  cases  hold  that  there  is  only  a  moral  obligation. 
"Except  under  the  operation  of  the  poor  law,"  said  Cockburn,  J., 
"there  is  no  legal  obligation  on  the  part  of  the  father  to  maintain  his 
child,  unless,  indeed,  the  neglect  to  do  so  should  bring  the  case  with- 
in the  criminal  law.  Civilly  there  is  no  such  obligation."  '  It  is  ac- 
cordingly held  in  England  that  a  parent,  even  where  he  neglects  to 
support  his  child,  is  not  liable  for  necessaries  furnished  to  it,  in  the 
absence  of  an  express  promise  to  pay  for  them,  or  conduct  from 
which  a  promise  may  be  implied  as  a  matter  of  fact.  In  other  words, 
it  is  held  that  the  law  does  not,  as  in  the  case  of  husband  and  wife, 
create  any  liability  on  the  part  of  a  parent  for  necessaries  furnished 
his  child,  in  the  absence  of  contract  in  fact,  express  or  implied,  on  his 
part.  "It  is  a  clear  principle  of  law,"  said  Parke,  B.,  "that  a  father  is 
not  under  any  legal  obligation  to  pay  his  son's  debts,  except,  in- 
deed, by  proceeding  under  St.  43  Eliz.  c.  2,  by  which  he  may,  under 
certain  circumstances,  be  compelled  to  support  his  children  according 


1  See  Finn  v.  Adams,  138  Mich.  258,  101  N.  W.  533.  And  see  Paxton  v. 
Paxton,  150  Cal.  667,  89  Pac.  10S3,  holding  that  the  liability  thus  created 
may  be  enforced  in  equity. 

2  State  V.  Beers,  77  Conn.  714,  58  Atl.  745 ;  Baldwin  v.  State,  118  Ga.  328, 
45  S.  E.  399;  Mays  v.  State,  123  Ga.  507,  51  S.  E.  503;  Brown  v.  State,  122 
Ga.  568,  50  S.  E.  378;  Moore  v.  State,  1  Ga.  App.  5U2,  57  S.  E.  1016;  State 
V.  Sparegrove,  134  Iowa,  599,  112  N.  W.  83;  State  v.  Block  (Mo.  App.)  82  S. 
W.  1103;  State  v.  Peabody,  25  R.  I.  544,  56  Atl.  1028.  And  see  People  v. 
Chamberlain  (Sup.)  106  N.  Y.  Supp.  149,  holding  that  since,  under  Code  Cr. 
Proc.  §  839,  the  mother  of  a  bastard  child  is  liable  for  its  support  if  able 
to  support  it,  she  may  be  prosecuted  for  abandonment  if  she  wrongfully  neg- 
lects to  do  so. 

s  Bazeley  v.  Forder,  L.  R.  3  Q.  B.  559. 


§  116)  parent's  duty  to  maintain  child.  253 

to  his  ability;  but  the  mere  moral  obligation  to  do  so  cannot  impose 
upon  him  any  legal  liability."  * 

In  this  country  the  rule  is  the  same  in  many  states.  In  a  number 
of  states  it  has  been  expressly  held,  in  accordance  with  the  English 
cases  referred  to,  that  a  parent  is  under  no  legal  obligation  to  sup- 
port his  children ;  ^  and  that  he  is  not  liable,  therefore,  for  neces- 
saries furnished  to  them,  in  the  absence  of  an  express  contract  to 
pay  for  them,  or  a  contract  implied  in  fact.' 

The  result  of  these  decisions  is  startling,  and  is  clearly  opposed  to 
every  natural  sense  of  justice.  If  they  are  sound,  the  result  is  that  a 
father  can  desert  a  child  which,  because  of  its  youth  or  of  sickness  or 
other  cause,  is  absolutely  helpless,  and  a  stranger  who,  to  save  its 
life,  feeds  and  clothes  it,  and  procures  necessary  medical  attendance, 
cannot  recover  his  expenditures  from  the  father.  On  the  other  hand, 
if  a  husband  deserts  his  wife,  though  she  may  be  fully  able  to  work 
and  to  earn  a  living,  the  law  allows  her  to  bind  her  husband  for 
necessaries  furnished  her,  even  against  his  express  command  not  to 
furnish  them.'^  Again,  it  is  well  settled,  both  in  England  and  in  this 
country,  that  a  parent  who,  being  able,  neglects  to  provide  the  neces- 
saries of  life,  including  necessary  medical  attendance,  for  a  child  who 
is  unable  to  provide  for  himself,  and  thereby  causes  the  child's 
death,  is  guilty  of  manslaughter  at  least;  and,  if  the  neglect  is  willful 
and  malicious,  he  is  guilty  of  murder.^  It  is  equally  well  settled,  as  a 
general  principle  of  law,  that  to  render  a  person  guilty  of  manslaugh- 

*  Mortimore  v.  Wright,  6  Mees.  &  W.  482.  And  see  Shelton  v.  Springett, 
11  C.  B.  452,  where  it  is  said  that  "a  father  is  not  liable  on  a  contract  made 
by  his  minor  child,  even  for  necessaries  furnished,  imless  an  actual  authority 
be  proved  or  the  circumstances  be  sufficient  to  imply  one."  And  it  is  also 
said  that  the  mere  obligation  to  provide  for  the  child's  maintenance  affords 
no  legal  inference  for  a  promise. 

6  Kelley  v.  Davis,  49  N.  H.  187.  6  Am.  Rep.  499  (but  see  Hillsborough  v. 
Deering,  4  N.  H.  86;  Pidgin  v.  Cram,  8  N.  H.  352);  Gordon  v.  Potter,  17 
Vt.  348;  Freeman  v.  Robinson,  38  N.  J.  Law,  383,  20  Am  Rep.  399;  Ray- 
mond V.  Loyl,  10  Barb.  (N.  Y.)  483;  Chilcott  v.  Trimble,  13  Barb.  (N.  Y.) 
502;  Hunt  v.  Thompson,  3  Scam.  (111.)  179,  36  Am.  Dec.  53S;  McMillen  v. 
Lee,  78  111.  443  (liut  see  cases  cited  in  note  10,  infra) ;  Holliugs worth  v.  Swe- 
denborg,  49  Ind.  378,  19  Am.  Rep.  087;  Holt  v.  Baldwin,  46  Mo.  265,  2  Am. 
Rep.  515;    White  v.  Mann,  110  Ind,  74,  10  N.  E.  629. 

«  See  the  cases  cited  above. 

T  Ante,  p.  13L 

8  Clark,  Or.  Law,  177,  and  cases  there  cited;  Reg.  v.  Morby,  Clark,  Cr. 
Gas.  75. 


254  DUTIES   AND   LIABILITIES   OF   PARENTS.  (Cll.  9 

ter,  because  of  a  neglect  of  duty  causing  another's  death,  the  duty 
must  be  a  legal,  as  distinguished  from  a  merely  moral,  duty,®  It  is 
inconsistent,  therefore,  to  hold  a  parent  criminally  liable  for  neglect 
to  support  his  child,  and  at  the  same  time  to  say  that  he  is  under  no 
legal  obligation  to  support  it.  The  law  says  that  a  parent  is  crim- 
inally liable  for  neglect  causing  hh  child's  death ;  and  it  says  that  a 
stranger  who  sees  a  child  starving  on  the  common,  or  attacked  by  a 
dog,  or  drowning,  is  not  criminally  liable  for  not  rescuing  it,  because 
the  stranger  is  not  legally,  but  only  morally,  bound  to  interfere.  And 
yet  the  law  also  says  that  a  parent  is  not  under  a  legal,  but  only  un- 
der a  moral,  obligation  to  feed  his  starving  child. 

These  inconsistencies  in  the  decisions  show  that  some  of  them 
are  wrong.  The  truth  is  that,  in  reason  and  on  principle,  a  parent  is 
legally,  as  well  as  morally,  bound  to  support  his  children,  if  they  are 
unable  to  care  for  themselves,  and  if  he  is  able  to  do  so;  and  if  he 
neglects  to  do  so,  and  another  performs  the  duty  for  him,  even 
against  his  wish  or  directions,  he  may  recover  therefor  from  the 
father,  without  regard  to  any  idea  of  a  contract  in  fact.  There  are  a 
number  of  cases,  and  much  dictum,  in  favor  of  this  view.^"    If  this  is 

9  Clark,  Cr.  Law,  177,  178,  and  cases  there  cited. 

10  2  Kent,  Comm.  190;  Reeve,  Dom.  Rel.  2S3;  Van  Valkinburgh  v.  Wat- 
son, 13  Johns.  (N.  Y.)  480,  7  Am.  Dec.  395;  Edwards  v.  Davis,  16  Johns. 
(N.  Y.)  285;  In  re  Ryder,  11  Paige  (N.  Y.)  188,  42  Am.  Dec.  109;  Furman  v. 
Van  Sise,  56  N.  Y.  435,  15  Am.  Dec.  441 ;  Manning  v.  Wells,  8  Misc.  Rep.  640,  20 
N.  Y.  Supp.  1044;  Guthrie  County  v.  Conrad,  133  Iowa,  171,  110  N.  W.  454; 
Plaster  v.  Plaster,  47  111.  290;  Allen  v.  Jacobi,  14  111.  App.  277;  Miller  v.  Davis, 
45  111.  App.  447  (but  see  Hunt  v.  Thompson,  3  Scam.  [111.]  179,  30  Am.  Dec.  538 ; 
McMillen  v.  Lee,  78  111.  443) ;  Owen  v.  White,  5  Port.  (Ala.)  435,  30  Am.  Dec.  572  ; 
Pretziuger  v.  Pretzinger,  45  Ohio  St.  452,  15  N.  E.  471,  4  Am.  St.  Rep.  542; 
Keaton  v.  Davis,  18  Ga.  457;  Rej^nolds  v.  Swcetser,  15  Gray  (Mass.)  78; 
Dennis  v.  Clark,  2  Cush.  (Mass.)  347,  352,  48  Am.  Dec.  071;  Weeks  v.  Mer- 
row,  40  Me.  151;  Hillsborough  v.  Deering,  4  N.  H.  80;  Pidgin  v.  Cram,  8 
N.  H.  352  (but  see  Kelley  v.  Davis,  49  N.  H.  187,  6  Am.  Rep.  490);  Fitler  v. 
Fitler,  33  Pa.  50;  Iloltzman  v.  Castleman,  2  MacArthur  (D.  C.)  555;  Ma- 
guinay  v.  Saudek,  5  Sneed  (Tenn.)  147;  Porter  v.  Powell,  79  Iowa,  151,  44 
N.  W.  205,  7  L  R.  A.  176,  18  Am.  St.  Rep.  353;  Stanton  v.  Willson,  3  Day 
(Conn.)  37,  3  Am.  Dec.  255  (approved  in  Finch  v.  Finch,  22  Conn.  421) ; 
Evans  v.  Pearce,  15  Grat.  (Va.)  513,  78  Am.  Dec.  635.  See,  also.  Conn  v. 
Conn.  57  Ind.  323;  Courtright  v.  Courtright,  40  Mich.  033;  Buckminster  v. 
Buckminster,  38  Vt.  252,  88  Am.  Dec.  652;  Wright  v.  Leupp,  70  N.  J.  Eq. 
130,  62  Atl.  464;  Cousins  v.  Boyer,  114  App.  Div.  787,  100  N.  Y.  Supp.  290; 
Holt  V.  Holt,  42  Ark.  495.  Though,  as  we  have  seen,  the  later  English  cases 
are  opposed  to  this  view,  it  is  not  altogether  clear  that  they  are  sustainable 


§  116)  parent's  duty  to  maintain  child.  255 

not  the  prevailing  view,  it  ought  to  be.  Some  of  the  cases  cited  in 
support  of  the  above  proposition  seem  to  recognize,  what  is  held  in 
England,  that  there  is  only  a  moral  obligation  on  the  part  of  the 
parent  to  furnish  support,  but  that  this  moral  obligation  is  sufficient 
to  impose  legal  liability  for  necessaries  upon  the  parent;  but  it  is 
not  proper  to  put  the  decision  on  this  ground,  for  the  general  rule  is 
that  a  moral  obligation  will  not  even  support  an  express  promise.  To 
hold  the  parent  liable,  the  courts,  in  effect,  hold  that  the  obligation 
is  a  legal  one. 

There  is  also  a  conflict  of  authority  on  the  question  of  the  duty  of 
a  mother,  who  is  a  widow,  to  maintain  her  minor  children.  In  some 
states  it  has  been  held  that  she  is  liable."  In  others  the  contrary  is 
held. ^2  In  case  a  widow  marries  again,  the  stepfather  is  under  no 
obligation  to  support  her  children  by  her  first  husband.^^ 

It  has  been  held  that  the  husband's  duty  of  maintenance  does  not 
pass  to  the  wife  on  divorce;^*  but,  when  the  care  and  custody  of 
the  children  are  awarded  to  the  mother  by  the  decree,  this  ought  to 
be  considered  as  carrying  with  it  the  obligation  to  support;  and  so 
it  has  been  held.^"  The  obligation  of  the  mother  ought  not  to  be 
considered  as  exclusive  of  her  husband's  liability.  He  should  remain 
liable  to  her  for  her  maintenance  of  the  child.    And  it  has  been  held 


by  authority.  See  Rawlyns  v.  Vandyke,  3  Esp.  252;  Stone  v.  Carr,  Id.  1. 
A  father  is  not  liable  for  necessaries  furnished  a  child  -while  in  the  custody 
of  the  mother,  who  had  left  him  without  cause.  Hyde  v.  Leisenring,  107 
Mich.  490,  65  N.  W.  536,  and  cases  there  cited.  Nor  is  he  liable  if  the  child 
is  of  the  age  of  discretion,  and  has  left  home  without  cause.    Id. 

11  Girls'  Industrial  Home  v.  Fritchey,  10  Mo.  App.  344;  Finch  v  Finch, 
22  Conn.  411;  Furman  v.  "Van  Sise,  56  N.  Y.  435,  15  Am.  Rep.  441;  Gray 
V.  Durland,  50  Barb.  (N.  Y.)  100,  and  dissenting  opinion,  page  211, 

12  Englehardt  v.  Yung,  76  Ala.  534;  Mowbry  v.  Mowbry,  64  111.  383;  Whip- 
ple V.  Dow,  2  Mass.  415;  Dawes  v.  Howard,  4  Mass.  97  (but  see  Inhabitants 
of  Dedham  v.  Inhabitants  of  Natick,  16  Mass.  135);  In  re  Besondy,  32  Miun. 
385,  20  N.  W.  366,  50  Am.  Rep.  579. 

i3Tubb  V.  Harrison,  4  Term  R.  118;  Com.  v.  Hamilton,  6  Mass.  273;  In 
re  Besondy,  32  Minn.  385,  20  N.  W.  306,  50  Am.  Rep.  579;  Bond  v.  Lockwood, 
33  111.  212;  McMahill  v.  McMahill,  113  111.  461.  But  see  Ela  v.  Brand,  63 
N.  H.  14. 

1*  Com-tright  v.  Courtright,  40  Mich.  633;  Thomas  v.  Thomas,  41  Wis.  229; 
Conn  V.  Conn,  57  lud.  323. 

15  Burritt  v.  Burritt,  29  Barb.  (N.  Y.)  124;  Brow  v.  Brightman,  136  Mass. 
187;    Finch  v.  Finch,  22  Conn.  411. 


256  DUTIES  AND   LIABILITIES  OF   PARENTS.  (Ch.  & 

that  such  is  the  law.^"  The  duty  to  support  his  children,  said  the  Ohio 
court,  "is  not  to  be  evaded  by  the  husband  so  conducting  himself  as 
to  render  it  necessary  to  dissolve  the  bonds  of  matrimony,  and  give  to 
the  mother  the  custody  and  care  of  the  infant  offspring.  It  is  not  the 
policy  of  the  law  to  deprive  children  of  their  rights  on  account  of 
the  dissensions  of  their  parents,  to  which  they  are  not  parties,  or  to 
enable  the  father  to  convert  his  own  misconduct  into  a  shield  against 
parental  liability.  The  divorce  may  deprive  him  of  the  custody  and 
the  services  of  his  children,  and  of  the  rights  of  guardianship,  against 
his  will;  but  if,  by  the  judgment  of  the  court,  and  upon  competent 
and  sufficient  evidence,  he  is  found  to  be  an  unfit  person  to  exercise 
parental  control,  while  the  mother  is  in  all  respects  the  proper  per- 
son to  be  clothed  with  such  authority,  he  cannot  justly  complain. 
The  alimony  allowed  by  the  court  below  is  not  to  be  construed  into 
an  allowance  for  the  support  also  of  the  child.  'Alimony,'  in  its 
proper  significance,  is  not  maintenance  to  the  children,  but  to  the 
wife;  and  the  fact  that  there  has  been  a  judgment  of  divorce,  with 
alimony  and  custody  of  minor  children  to  the  wife,  will  not  of  itself 
operate  as  a  bar  to  a  subsequent  claim  against  the  husband  for  the 
children's   maintenance."  ^^ 

The  obligation  on  the  part  of  the  parent  to  maintain  the  child 
continues  until  the  child  is  in  a  condition  to  provide  for  its  own 
maintenance,  and  no  further;  and  in  no  case  does  it  extend  further 
than  to  a  necessary  support.^®  The  legal  obligation  ceases,  except 
under  some  of  the  statutes,  as  soon  as  the  child  reaches  the  age  of 
majority,  however  helpless  he  may  be,  and  however  wealthy  the 
father  may  be/" 

16  Alvey  V.  Hartwig,  106  Md.  254,  67  All.  132,  11  L.  R.  A.  (N.  S.)  678.  And 
see  Maxwell  v  Boyd.  123  Mo:  App.  334,  100  S.  W.  540,  holding  that  an  asifO- 
ment  between  husband  and  wife,  on  separating,  that  he  will  pay  a  certain 
amount  per  year  for  support  of  their  child  during  its  minority,  the  wife  to 
have  custody  of  the  child,  is  enforceable,  though  the  wife  has  got  a  divorce 
and  has  remarried  and  has  removed  from  the  state  with  the  child. 

17  Pretzinger  v.  Pretzinger,  45  Ohio  St.  452,  15  N.  E.  471,  4  Am.  St.  Rep. 
542.     And  see  Holt  v.  Holt,  42  Ark,  495. 

18  2. Kent,  Comm.  190.  i»  2  Kent,  Comm.  191. 


§   117)  MAINTENANCE   OUT  OF  CHILD'S  ESTATE.  257 

MAINTENANCE   IN   EQUITY— ALI.OWANCE   OUT    OF   CHILD'S   ES- 
TATE. 

117.  When  a  parent  is  nnable  to  support  his  child,  and  the  child 
has  property,  equity  xrill  make  allo-wances  therefrom  for  his 
future  or  past  maintenance.  An  alloxrance  •will  not  be  grant- 
ed if  the  parent  is  able  to  support  his  child,  except  where 
the  child's  fortune  exceeds  the  parent's,  •when  it  may  be  main- 
tained  according  to  its  fortune. 

Where  a  father  has  not  sufficient  means  to  support  his  child, 
and  the  child  has  property  of  its  own,  it  may  be  not  only  main- 
tained, but  educated,  from  the  income  of  such  property;  and  a  court 
of  equity  will  order  such  allowances  as  may  be  necessary.^"  In  an 
urgent  case  the  court  may  use  the  principal  of  a  fund  or  other  prop 
erty  belonging  to  a  child  to  maintain  and  educate  him.^^  As  a 
general  rule,  however,  if  the  father  is  amply  able  to  support  and 
educate  his  child,  no  allowance  will  be  made  out  of  the  child's  prop- 
erty, unless  the  child's  fortune  is  in  excess  of  that  .of  the  parent.^ ^ 

It  is  obviously  to  the  best  interests  of  the  child  that  he  be  main- 
tained and  educated  in  such  a  manner  as  to  fit  it  to  fill  the  position 
in  life  to  which  its  future  will  entitle  it.  And  it  has  therefore  been 
held  that,  when  the  child's  fortune  warrants  a  scale  of  expenditure 
beyond  what  the  parent's  fortune  will  permit,  a  court  of  equity  will 
make  allowances  therefrom,  in  accordance  with  the  fortune,  for  his 
maintenance   and    education. ^^      "What   allowance,    if   any,    shall   be 

20  2  Kent,  Ck)mm.  191;  3  Pom.  Eq.  Jur.  §  1309,  note  4;  Fuller  v.  Fuller, 
23  Fla.  236,  2  South.  426;  Commonwealth  v.  Lee,  120  Ky.  433,  86  S.  W.  990, 
judgment  modified  on  rehearing  120  Ky.  433,  89  S.  W,  731;  Beardsley  v. 
Hotchkiss,  96  N.  Y.  201,  219;  Newport  v.  Cook,  2  Ashm.  (Pa.)  332;  Evans 
V.  Pearce,  15  Grat  (Va.)  513,  78  Am.  Dec.  635. 

21  Newport  v.  Cook,  2  Ashm.  (Pa.)  332. 

22  Butler  V.  Butler,  3  Atk.  58;  Darley  v.  Darley,  Id.  399;  Wellesley  v.  Duke 
of  Beaufort,  2  Russ.  3,  28;  Cruger  v.  Hey  ward,  2  Desaus.  (S.  C)  94;  In  re 
Kane,  2  Barb.  Ch.  (N.  Y.)  375;  Chapline  v.  Moore,  7  T.  B.  Mon.  (Ky.)  150; 
Tanner  v.  Skinner,  11  Bush  (Ky.)  120;  In  re  Harland,  5  Rawle  (Pa.)  323; 
Ela  V.  Brand,  63  N.  H.  14;  Buckley's  Adm'r  v.  Howard,  35  Tex.  506;  Kinsey 
V.  State,  98  Ind.  351 ;  Hines  v.  Mullius,  25  Ga.  696 :  Burke  v.  Turner.  85  N. 
C.  500. 

23  2  Kent,  Comm.  191;  Jervoise  v.  Silk,  Coop.  t.  Eld.  52;  Roach  v,  Garvan, 
1  Ves.  Sr.  157;  In  re  Burke,  4  Sandf.  Ch.  (N.  Y.)  617;  Trimble  v,  Dodd,  2 
Tenn.  Oh.  500;  Ela  v.  Brand,  63  N.  H.  14;  Evans  v.  Pearce,  15  Grat.  (Va.^ 
513,  78  Am.  Dec.  635.    But  see  McKnight's  Ex'rs  v.  Walsh,  23  N.  J.  Eq.  130 

TTFF.P.&  D.REr,.(2D  Ed.)— 17 


258  DUTIES  AND   LIABILITIES  OF   PARENTS.  (Ch.  9 

made  to  a  father  out  of  his  children's  property,  for  their  mainte- 
nance, is  a  broad  question  of  equity.  The  circumstances  of  each 
case,  including  the  respective  estates  of  father  and  child,  are  con- 
sidered, and  the  decision  is  a  just  and  reasonable  conclusion  of  fact, 
with  due  regard  for  the  general  rule  of  parental  duty."  ^* 

An  allowance  may  also  be  made  for  past  maintenance  and  educa- 
tion, when  the  extent  of  the  respective  estates  of  the  parent  and 
child,  and  the  particulars  of  the  expenditures,  render  an  allowance 
equitable  and  just.^^  The  mother  is  shown  special  favor  in  allow- 
ances for  past  maintenance  and  expenditures  for  education,  and 
the  courts  will  grant  them  in  her  case  without  so  strict  a  showing 
as  might  be  required  of  the  father.** 


PARENT'S   DUTY   TO    PROTECT    CHIIiD. 

118.   The   law   recognizes  the  dnty  of   a  parent  to  protect  his  child, 
and   ^xn.'\l   uphold   him   therein. 

The  duty  of  a  parent  to  protect  his  child  is  fully  recognized  by 
the  common  law;  but,  as  was  said  by  Blackstone,  it  is  "rather  per- 
mitted than  enjoined  by  any  municipal  law ;  nature  in  this  respect 
working  so  strongly  as  to  need  rather  a  check  than  a  spur."  *^  A 
parent  may  justify  an  assault  and  battery,  or  even  a  homicide,  in 
the  necessary  defense  of  the  person  of  his  child.^*  And  he  could 
maintain  and  uphold  his  children  in  their  lawsuits  without  being 
guilty   of  the   common-law   offense   of  maintenance.*" 


24  Ela  V.  Brand,  63  N.  H.  14. 

26  Brown  v.  Smith,  10  Ch.  Div.  377;  In  re  Kane,  2  Barb.  Ch.  (N.  Y.)  375; 
Smith  V.  Geortner,  40  How.  Prac,  (N.  Y.)  185;  Beardsley  v.  Hotchiiiss,  96 
N.  Y.  201;  Otte  v.  Becton,  55  Mo.  99;  Myers  v.  Myers,  2  McCord,  Eq.  (S. 
C.)  214,  16  Am.  Dec.  648;  Trimble  v.  Dodd,  2  Tenn,  Ch.  500;  Ailing  v.  Al- 
Ung,  52  N.  J.  Eq.  92,  27  Atl.  655. 

26  In  re  Besondy,  32  Minn.  385,  20  N.  W.  366,  50  Am.  Rep.  579;  Stewart 
v.  Lewis,  16  Ala.  734;  Englehardt  v.  Yung,  76  Ala.  534;  Mowbry  v.  Mowbry, 
64  111.  383 ;  Gladding  v.  Follett,  2  Dem.  Sur.  (N.  Y.)  58;  Whipple  v.  Dow,  2 
Mass.  415;  Pyatt  v.  Pyatt,  46  N.  J.  Eq.  285,  18  Atl.  I(>i8;  Ailing  v.  Ailing, 
52  N.  J.  Eq.  92,  27  Atl.  655. 

27  1  Bl.  Comm.  450. 

28  1  Bl.  Comm.  450;   1  Hawk.  P.  C.  131. 

20  1  Bl.  Comm.  450.  But  it  is  not  the  legal  duty  of  a  parent  to  engage 
counsel  to  defend  his  child.     Hill  v.  Childress,  10  Yerg.  (Tenn.)  514. 


§    120)  CONTRACTS    BY    CHILD   AS   PARENT'S   AGENT.  259 

PARENT'S   DUTY   TO    EDUCATE    CHILD. 

119.  Parents  are  not  under  any  legal  duty  to  educate  their  children. 

It  is  sometimes  said  by  text-writers  that  it  is  the  duty  of  a 
parent  to  give  his  children  an  education  suitable  to  their  station 
in  Iife,^°  and  there  are  dicta  in  many  cases  to  the  same  efifect.^^ 
This  duty,  however,  is  only  a  moral  one.  There  is  no  legal  duty 
on  the  part  of  a  parent  to  educate  his  children,  however  wealthy  he 
may  be.  At  least,  there  seems  to  be  no  case  in  which  such  a  duty 
has  been  enforced,  either  directly  or  indirectly.  Education  is  not 
necessary  to  the  subsistence  of  a  child,  and  the  reasons  which  should, 
and  in  some  states  do,  render  a  parent  legally  bound  to  support  his 
child  do  not  apply. 

CONTRACTS  BY  CHILD  AS  PARENT'S  AGENT. 

120.  A   child,   if   expressly   or   impliedly    authorized,    may   act   as   his 

parent's  agent,  and  bind  him  by  a  purchase  of  goods,  or  by 
any  other  contract.  If  the  parent  holds  the  child  out  as  hav- 
ing authority,  he  constitutes  him  his  agent  by  estoppel. 

If  a  child  is  authorized,  he  may  act  as  agent  for  his  parent.  Not 
only  may  he  bind  his  parent  to  pay  for  necessaries  purchased,^-  when 
authorized  by  him;  but  he  may,  when  authorized,  bind  him  by  any 
other  contract.  This  depends,  not  upon  any  principle  peculiar  to 
the  relation  of  parent  and  child,  but  on  principles  of  the  law  of 
agency.  The  relation,  however,  will  enable  the  court  to  infer  au- 
thority from  slight  evidence.^^  It  will  be  implied  if  the  parent 
has  been  in  the  habit  of  paying  his  child's  bills  without  objection.^* 


30  1  Bl.  Comm.  150;   2  Kent,  Comm.  1S9. 

81  Morse  v.  Weltoq,  6  Conn.  547,  16  Am.  Dec.  73;  Abbott  v.  Converse, 
4  Allen  (Mass.)  533;  Lord  v.  Poor,  23  Me.  569;  Johnson  v.  Terry,  34  Conn. 
259. 

32  Finn  v.  Adams,  138  Mich.  258,  101  N.  W.  533. 

3  3  Freeman  y.  Robinson,  38  N.  J.  Law,  383,  20  Am,  Rep.  399;  Jordan  v. 
Wright,  45  Ark.  237.  See,  as  to  sufficiency  of  evidence,  Cousins  v.  Boyer, 
114  App.  Div.  787,  100  N.  Y.  Supp.  290. 

34  Thayer  v.  White,  12  Mete.  (Mass.)  343;  Fowlkes  v.  Baker,  29  Tex.  135, 
94  Am.  Dec.  270;    Bryan  v.  Jackson,  4  Conn.  288;    Murphy  v,  Ottenheimer, 


260  DUTIES   AND   LIABILITIES  OF   PARENTS.  (Ch.  9 

"Where  the  father  permits  his  minor  child  to  purchase  goods  on  his 
account,  whether  for  himself  or  for  the  father,  and  he  pays  for 
them  without  objection,  it  is  a  reasonable  presumption  that  the 
minor  had  authority,  and  was  the  agent  of  the  father,  having  full 
power  to  make  such  purchases.  The  proof  of  such  authority  is  the 
same  as  the  agency  of  the  wife  or  a  servant.  The  circumstances 
which  authorize  the  inference  of  authority  in  the  one  case  will  be 
sufficient  in  either  of  the  others;  in  each  the  question  being  wheth- 
er there  was  authority  to  act  as  agent.  When  the  agency  is  found 
to  exist,  the  law  then  implies  a  promise,  as  in  the  case  of  any  other 
agency."  "*  The  father  who  allows  his  child  to  purchase  goods  on 
his  credit,  and  pays  the  bills  without  objection,  cannot  be  heard  to 
deny  the  child's  agency.  There  is  a  clear  case  of  agency  by  estop- 
pel, for  the  father  thus  holds  out  the  child  as  having  authority  to 
bind  him. 

If  the  credit  is  given  to  the  child  in  these  cases,  and  not  to  the 
parent,  the  latter  does  not  become  liable,  for  his  liability  is  based 
on  the  theory  that  the  child  has  contracted,  not  for  himself,  but  as 
agent  for  his  parent;  that  he  has  pledged  his  parent's,  and  not  his 
own,  credit. 


PARENT'S  lilABILITY  FOR  CHILD'S  TORTS. 

121.  A  parent  is  not  liable,  because  of  the  relation,  for  tbe  torts  of 
bis  child;  but  he  may  be  liable  for  torts  committed  as  his 
agent  or  servant,  or  with  his  kno^vledge  and  acquiescence. 

Unlike  the  status  of  husband  and  wife,  where  the  law  makes  the 
husband  liable  for  his  wife's  torts,^'  the  status  of  parent  and  child 
imposes  no  liability  on  the  parent  for  the  torts  of  his  child  not  com- 


84  111.  39,  25  Am.  Rep.  424;  Johnson  v.  Smallwood,  88  III.  73;  Manning  v. 
Wells,  8  Misc.  Rep.  646,  29  N.  Y.  Supp.  1044. 

3  5Murphy  v.  Ottenheimer,  84  111.  39,  2.5  Am.  Rep.  424;  McCrady  v.  Pratt, 
138  Mich.  203,  101  N.  W.  227.  A  child  cannot  bind  the  parent,  even  for  nec- 
essaries, unless  authorized  by  the  parent,  expressly  or  by  conduct,  or  unless 
the  parent  neglects  to  support  him.  Miller  v.  Davis,  49  111.  App.  377;  Rey- 
nolds V.  Ferree,  86  111.  570:  Smith  v.  Gilbert,  80  Ark.  525,  98  S.  W.  115,  8 
L.  R.  A.  (N.  S.)  1098;   and  cases  above  cited. 

«a  Ante,  p.  64. 


§  121)  parent's  liability  for  child's  torts.  261 

mitted  with  his  knowledge,  nor  by  his  authority,  express  or  implied.^'' 
There  was  such  a  liability  under  the  civil  law,  but  it  never  was  recog- 
nized by  the  common  law.  If  the  parent  authorizes  the  child  to  act 
as  his  servant  or  agent  in  any  matter,  he  will  be  liable  for  any  torts 
committed  by  the  child  in  the  course  of  this  employment.^®  This  lia- 
bility does  not  depend  upon  the  relationship  of  the  parties  as  parent 
and  child,  but  upon  their  relationship  as  principal  and  agent,  and  is 
governed  by  the  rules  governing  other  cases  of  agency.  "A  father  is 
never  liable  for  the  wrongful  acts  of  his  minor  son,  unless  the  acts 
are  committed  with  the  father's  consent,  or  in  connection  with  the 
father's  business."  ^^  The  nature  of  the  tort,  and  the  character  of 
the  child,  can  make  no  difference.  A  father,  for  instance,  is  not  lia- 
ble for  an  unauthorized  assault  by  his  son,  though  he  may  have 
known  that  the  son  was  of  a  vicious  character.*"     If  a  father  knows 


3  7  Moon  V.  Towers,  8  C.  B.  (N.  S.)  611;  Palm  v.  Ivorson,  117  111.  App. 
535;  Maker  v.  Benedict,  123  App.  Div.  579,  108  N.  Y.  Supp.  228;  Chastain 
V.  Johns.  120  Ga.  977.  48  S.  E.  343,  66  L.  R.  A.  958;  Miller  v.  Meche,  111 
La.  143.  35  South.  491;  Tlfft  v.  Tlflft,  4  Denio  (N.  Y.)  175;  Paulin  v.  Bow- 
ser, 63  111.  312;  Wilson  v.  Garrard.  59  111.  51;  Schlossberg  v.  Lahr,  60  How. 
Prac.  (N.  Y.)  450;  Brohl  v.  Lingeman,  41  Mich.  711,  3  N.  W.  199;  Baker  v. 
Haldeman,  24  Mo.  219,  69  Am.  Dec.  430;  Paul  v.  Hummel,  43  Mo.  119,  97 
Am.  Dec.  381;  Chandler  v.  Deaton,  37  Tex.  406;  Edwards  v.  Grume,  13 
Kan,  348;  Smith  v.  Davenport,  45  Kan.  423,  25  Pac.  851,  11  L.  R.  A.  429, 
23  Am.  St.  Rep.  737;  McCauley  v.  Wood,  2  N.  J.  Daw,  86;  Scott  v.  Watson. 
46  Me.  362,  74  Am.  Dec.  457;  Shockley  v.  Shepherd,  9  Houst.  (Del.)  270,  32 
Atl.  173. 

3  8  Teagarden  v.  McLaughlin,  86  Ind.  476,  44  Am.  Rep.  332;  Strohl  v.  Lev- 
an,  39  Pa.  177;  Lashbrook  v.  Patten,  1  Duv.  (Ky.)  317;  Beedy  v.  Reding, 
16  Me.  362;  Dunks  v.  Grey  (C.  C.)  3  Fed.  862.  In  Strohl  v.  Levan,  supra, 
a  father  was  held  liable  in  trespass  for  an  injury  inflicted  by  his  son  while 
driving  the  father's  team,  the  father  being  present  in  the  wagon  at  the  time. 

3  9  Smith  V.  Davenport,  45  Kan.  423,  25  Pac.  851,  11  L.  R.  A.  429,  23  Am. 
St.  Rep.  737.  In  TifCt  v.  Tifft,  4  Denio  (N.  Y)  175,  an  action  was  brought 
against  a  man  for  the  killing  of  a  hog  by  a  dog,  on  the  ground  that  the  dog 
was  set  on  by  the  defendant's  minor  daughter.  In  Baker  v.  Haldeman,  24 
Mo.  219,  69  Am.  Dec.  430,  and  other  cases,  supra,  the  father  was  sued  for 
an  assault  committed  by  his  child.  In  neither  case  was  the  tort  committed 
with  the  father's  consent,  and  he  was  held  not  liable.  On  the  other  hand, 
in  Teagarden  v.  McLaughlin,  86  Ind.  476,  44  Am.  Rep.  332,  where  a  minor 
son  had  contracted  with  his  father  to  clear  a  parcel  of  land,  and  in  doing 
so  negligently  burned  the  property  of  a  third  person,  the  father  was  held 
liable,  not  because  he  was  the  parent  of  the  wrongdoer,  but  because  the 
wrongdoer  was  acting  in  his  employment. 

*o  Paul  V.  Hummel,  43  Mo.  119,  97  Am.  Dec.  381. 


262  DUTIES  AND   LIABILITIES  OF   PARENTS.  (Ch.  9 

that  his  minor  child  is  committing  a  tort,  and  makes  no  effort  to  re- 
strain him,  he  will  be  deemed  to  have  consented  and  authorized  its 
commission.*^ 

The  liability  of  a  child  for  his  own  torts  will  be  shown  when  we 
come  to  deal  with  the  disability  of  infancy.*^ 


PARENT'S    LIABILITY   FOR   CHILD'S    CRIMES. 

122.   The   relation    of   parent   and   child    does   not   render  the   parent 
liable   for  his   child's   crimes. 

A  parent  may  become  criminally  liable  for  the  acts  of  his  son  if 
he  counsels,  aids,  or  abets  him  therein,  just  as  he  would  become  liable 
as  an  aider  and  abettor  of  any  other  criminal.  But  he  does  not  incur 
any  criminal  liability  for  acts  of  his  child  to  which  he  is  in  no  way  a 
party.     The  child's  liability  for  his  own  crimes  is  hereafter  shown. *^ 


*i  In  Beedy  v.  Reding,  16  Me.  362,  a  father  was  held  liable  in  trover  for 
wood  taken  at  three  different  times  by  his  minor  sons,  under  circumstan- 
ces which  justified  the  jury  in  finding  that  it  was  taken  with  the  father's 
knowledge.  "The  minor  sons  of  the  defendant,"  said  the  court,  "being  at 
the  time  members  of  his  family,  with  the  defendant's  team,  at  three  several 
times,  hauled  away  the  plaintiff's  wood.  This  could  hardly  have  been  done 
without  the  defendant's  knowledge,  if  it  had  not  his  approbation.  It  was 
his  duty  to  have  restrained  them  from  trespassing  on  his  neighbor's  prop- 
erty. 'Qui  non  prohibit  cum  prohibere  possit,  jubet.'  And  this  maxim  may 
be  applied  witli  great  propriety  to  minor  children  residing  with  and  under 
the  control  of  their  father."     See,  also.  Dunks  v.  Grey  (G.  G.)  3  Fed.  862. 

*2  Post,  p.  430.  *8  Post,  p.  435. 


§  123) 


EIGHTS  OF  PARENTS  AND   OF   CHILDREN. 


263 


CHAPTER  X. 
RIGHTS  OF  PARENTS  AND  OF  CHILDREN. 

123.  Rights  of  Parents  in  General. 

124.  Parent's  Right  to  Correct  Child. 
125-126.  Custody  of  Children. 

127.  Parent's  Right  to  Child's  Services  and  Earnings. 

128-131.  Emancipation  of  Children. 

132-134.  Action  by  Parent  for  Injuries  to  Child. 

135-137.  Action  by  Parent  for  Seduction  or  Debauching  of  Daughter. 

138, 139.  Action  by  Parent  for  Abducting,  Enticing,  or  Harboring  Child. 

140.  Parent's  Rights  in  Child's  Property. 

141.  Gifts,  Conveyances,  and  Contracts  between  Parent  and  Child, 
142-143.  Advancements. 

144.  Duty  of  Child  to  Support  Parent. 

145.  Domicile  of  Child- 


IN  GENERAL. 

123.   To  enable  them,  to  perform  their  duties,  parents  have,  subject  to 
certain  restrictions— 

(a)  The  right  to  correct  their  children. 

(b)  The  right  to  their  custody. 

(c)  The  right  to  their  services  and  earnings. 

Parents  possess  certain  powers  over  their  children,  and  certain 
rights  in  relation  to  them.  As  will  be  seen  in  the  following  pages, 
they  have  the  right  to  control  and  correct  them  within  certain  limits, 
the  right  to  the  custody  of  them,  and  the  right  to  their  services. 
Blackstone  says  that  these  rights  are  given  to  parents,  partly  to  en- 
able them  to  more  effectively  perform  their  duty,  and  partly  as  a  rec- 
ompense for  their  care  and  trouble  in  discharging  it.^  Kent  says: 
"The  rights  of  parents  result  from  their  duties.  As  they  are  bound 
to  maintain  and  educate  their  children,  the  law  has  given  them  a 
right  to  such  authority,  and,  in  the  support  of  that  authority,  a  right 
to  the  exercise  of  such  discipline  as  may  be  requisite  for  the  discharge 
of  their  sacred  trust.  This  is  the  true  foundation  of  parental  pow- 
er." « 


1 1  Bl.  Comm.  452. 


«  2  Kent,  Comm.  203. 


264  RIGHTS  OF   PARENTS  AND   OF  CHILDREN.  (Ch.  10 


PARENT'S   RIGHT   TO    CORRECT   CHILD. 

124.  A  parent,  or  one  standing  in  loco  parentis,  may  correct  the 
cliild  in  a  reasonable  manner.  If  the  correction  is  excessive 
or  ivithont  cause,   he   xnil  be   amenable  to   the   criminal   Laiv. 

A  parent  has  the  right  to  correct  and  punish  his  minor  child  in  a 
reasonable  manner ;  and,  so  long  as  he  keeps  within  the  bounds  of 
moderation,  he  cannot  be  made  amenable  to  the  criminal  law  there- 
for, as  he  would  be  if  he  undertook  to  punish  another's  child.'  Per- 
sons standing  in  loco  parentis  have  the  same  right.*  A  school-teach- 
er is  within  the  rule."  In  the  decided  cases,  the  question  has  gen- 
erally arisen  in  regard  to  the  father;  but  there  is  no  reason  why  the 
power  of  correction  should  not,  like  the  power  of  control  and  the 
right  to  the  child's  services,  pass  to  the  mother  on  the  father's  death. 
Indeed,  there  seems  no  reason  to  doubt  but  that,  even  during  the 
father's  lifetime,  except  against  his  objection,  the  mother  has  a  le- 
gal right  to  correct  her  children. 

A  parent  cannot  exercise  the  right  of  correction  in  a  cruel  manner, 
as  by  inflicting  excessive  punishment.*  Nor  can  he  inflict  punish- 
ment wantonly  and  without  cause. '^     If  he  transcends  his  authority  in 

«  1  Hawk.  P.  C.  130;  1  Bl.  Comm.  452;  Clark,  Cr.  Law,  212 ;  Winterburn  v. 
Brooks,  2  Car.  &  K.  16. 

*  Gorman  v.  State,  42  Tex.  221;  State  v.  Alford,  68  N.  C.  322;  Boyd  v. 
State,  88  Ala.  169,  7  South.  268,  16  Am.  St.  Rep.  31;  Dean  v.  State,  89  Ala. 
46,  8  South.  38.  See,  also,  Fortiuberry  v.  Holmes,  89  Miss.  373,  42  South.  799, 
holding  that,  where  a  mother  left  her  child  with  a  person  who  was  to  support, 
educate,  care  for,  and  treat  it  as  his  own  child,  such  person  stood  in  loco 
parentis,  and  hence  could  not  be  sued  by  the  child  for  a  whipping  inflicted  on 
it,  even  though  the  mother  stated,  when  she  gave  the  child,  that  it  was  not  to 
be  whipped. 

6  Anderson  v.  State,  3  Head  (Tenn.)  455,  75  Am.  Dec.  774 ;  Lander  v.  Seaver, 
32  Vt.  114,  76  Am.  Dec.  156 ;  State  v.  Burton,  45  Wis.  150,  30  Am.  Rep.  706 ; 
Danenhoffer  v.  State,  69  Ind.  295,  35  Am.  Rep.  216;  Patterson  v.  Nutter,  78 
Me.  509,  7  Atl.  273,  57  Am.  Rep.  818. 

6  Reg.  V.  Griffin,  11  Cox,  Cr.  Cas.  402;  Johnson  v.  State,  2  Humph.  (Tenn.) 
283,  36  Am.  Dec.  322 :  Com.  v.  Coffey,  121  Mass.  66;  Com.  v.  Blaker,  1  Brewst. 
(Pa.)  311 ;  Neal  v.  State,  54  Ga.  281 ;  State  v.  Bitman,  13  Iowa,  485 ;  State  v. 
Jones,  95  N.  C.  588,  59  Am.  Rep.  282;  Com.  v.  Seed,  5  Clark  (Pa.)  78;  Dean  v. 
State,  89  Ala.  46,  8  South.  38. 

7  Fletcher  v.  People,  52  111.  395 ;  Com.  v.  Coffey,  121  Mass.  66 ;  Gorman  v. 
State,  42  Tex.  221 ;    State  v.  Jones,  95  N.  C.  588,  59  Am.  Rep.  282 ;   Hinkle  v. 


§  124)  parent's  right  to  corrkct  child.  265 

this  respect,  he  will  be  amenable  to  the  criminal  law.  He  will  be 
guilty  of  assault  and  battery,^  or  murder  or  manslaughter,^  according 
to  the  circumstances.  "The  right  of  parents  to  chastise  their  re- 
fractory and  disobedient  children  is  so  necessary  to  the  government 
of  families,  and  to  the  good  order  of  society,  that  no  moralist  or  law- 
giver has  ever  thought  of  interfering  with  its  existence,  or  of  calling 
upon  them  to  account  for  the  manner  of  its  exercise  upon  light  or 
frivolous  pretenses.  But  at  the  same  time  that  the  law  has  created 
and  preserved  this  right,  in  its  regard  for  the  safety  of  the  child,  it 
has  prescribed  bounds  beyond  which  it  shall  not  be  carried.  In 
chastising  a  child,  the  parent  must  be  careful  that  he  does  not  exceed 
the  bounds  of  moderation,  and  inflict  cruel  and  merciless  punish- 
ment. If  he  do,  he  is  a  trespasser,  and  liable  to  be  punished  by  in- 
dictment. It  is  not,  then,  the  infliction  of  punishment,  but  the  excess, 
which  constitutes  the  oflFense;  and  what  this  excess  shall  be  is  not  a 
conclusion  of  law,  but  a  question  of  fact,  for  the  determination  of  the 
jury."  10 

Some  of  the  authorities  hold  a  parent,  or  one  standing  in  loco  pa- 
rentis, criminally  liable  if,  in  correcting  the  child,  he  acts  unreasonably 
— that  is,  if  the  correction  is  immoderate  or  excessive  in  fact — even 
though  he  may  have  acted  honestly  and  without  malice,  and  though 
no  permanent  injury  may  have  been  inflicted  on  the  child;  and  they 
leave  it  to  the  jury  exclusively  to  determine  whether  the  correction 
was  immoderate,  without  any  further  test  than  that  of  its  being  rea- 
sonable."   According  to  the  better  opinion,  however,  the  jury  are  not 


State,  127  Ind.  490,  26  N.  E.  777.  It  is  held  that,  where  the  relation  of  parent 
and  child  exists,  the  child  cannot  maintain  an  action  for  damages  against 
the  parent  for  personal  Injuries  wrongfully  inflicted.  "The  peace  of  society, 
and  of  the  families  composing  society,  and  a  sound  public  policy,  designed  to 
subserve  the  repose  of  families,  and  the  best  interests  of  society,  forbid  to 
the  minor  child  a  right  to  appear  in  court  in  the  assertion  of  a  claim  to  civil 
redress  for  personal  injuries  suffered  at  the  hands  of  the  parent.  The  state, 
through  its  criminal  laws,  will  give  the  minor  child  protection  from  parental 
violence  and  wrongdoing,  and  this  is  all  the  child  can  be  heard  to  demand." 
Hewlett  V.  George,  68  Miss.  703,  9  South.  885,- 13  L.  R.  A.  682. 

8  Clark,  Cr.  Law,  212. 

»  Clark,  Cr.  Law,  158,  172. 

10  Johnson  v.  State,  2  Humph.  (Tenn.)  283,  36  Am.  Dec.  322. 

11  Tatterson  v.  Nutter,  78  Me.  500,  7  Atl.  273,  57  Am.  Rep.  818;  Johnson  v. 
State,  2  Humph.  (Tenn.)  283,  36  Am.  Dec.  322 ;  Hinkle  v.  State,  127  Ind.  490, 
2t)  N.  E.  777 ;   Neal  v.  State,  54  Ga.  281, 


266  EIGHTS  OF  PARENTS  AND   OP  CHILDREN.  (Ch.  10 

to  be  permitted  to  determine  in  all  cases,  without  regard  to  any  fixed 
rule  or  standard,  whether  the  correction  was,  in  their  opinion,  unrea- 
sonable, and  therefore  excessive.  Parents  must  be  allowed  to  exer- 
cise some  discretion.  A  jury  cannot  exercise  it  for  them.  The  court 
should  therefore  instruct  the  jury  that  they  are  not  justified  in  find- 
ing that  the  parent  is  criminally  liable  because  he  exceeded  his  au- 
thority, unless  they  find  that  he  inflicted  permanent  injury,  or  that 
he  acted  from  malice.*'*  As  was  said  by  the  North  Carolina  court: 
"It  would  be  a  dangerous  innovation,  fruitful  in  mischief,  if,  in  dis- 
regard of  an  established  rule  assigning  limits  to  parental  power,  it 
were  to  be  left  to  the  jury  to  determine  in  each  case  whether  a 
chastisement  was  excessive  and  cruel,  and  to  convict  when  such  was 
their  opinion."  *'  "The  law  has  provided  no  means  whereby  a  par- 
ent, meditating  chastisement,  can  first  obtain  a  judicial  opinion  as 
to  its  necessity,  the  proper  instruments,  and  its  due  extent.  In  rea- 
son, therefore,  if  he  acts  in  good  faith,  prompted  by  true  parental  love, 
without  passion,  and  inflicts  no  permanent  injury  on  the  child,  he 
should  not  be  punished  merely  because  a  jury,  reviewing  the  case,  do 
not  deem  that  it  was  wise  to  proceed  so  far."  **  Malice  on  the  part 
of  the  parent  may,  of  course,  be  inferred  from  the  circumstances, 
the  fault  for  which  the  punishment  was  inflicted,  the  instrument 
used,  etc.*"^  Thus,  malice  may  well  be  inferred  where  a  father  strikes 
his  10  year  old  daughter  with  a  saw ;  *'    or  leaves  his  12  year  old 

12  state  V.  Jones,  95  N.  C.  588,  59  Am.  Rep.  282;  State  v.  Alford,  68  N.  C. 
322;  State  v.  Peudergrass,  19  N.  C.  3G5,  31  Am.  Dec.  416;  Com.  v.  Seed,  5 
Clark  (Pa.)  78;  Boyd  v.  State.  88  Ala.  169,  7  South.  268,  16  Am.  St  Rep.  31 ; 
Dean  v.  State,  89  Ala.  46,  8  South.  38. 

13  State  V.  Jones,  95  N.  C.  588,  59  Am.  Rep.  282. 

1*1  Bish.  Cr.  Law,  §  882.  "There  are  some  well-considered  authorities 
which  hold  teachers  and  parents  alike  liable,  criminally,  if,  in  the  infliction 
of  chastisement,  they  act  clearly  without  the- exercise  of  reasonable  judg- 
ment and  discretion.  The  test  which  seems  to  be  fixed  by  these  cases  is 
the  general  judgment  of  reasonable  men.  Patterson  v.  Nutter,  78  Me.  509, 
7  Atl.  273,  57  Am.  Rep.  818.  The  more  correct  view,  however,  and  the  one  bet- 
ter sustained  by  authority,  seems  to  be  that  when,  in  the  judgment  of  reason- 
able men,  the  punishment  inflicted  is  immoderate  and  excessive,  and  a  jury 
would  be  authorized,  from  the  facts  of  the  case,  to  infer  that  it  was  induced  by 
legal  malice,  or  wickedness  of  motive,  the  limit  of  lawful  authority  may  be  ad- 
judged to  be  passed."  Boyd  v.  State,  88  Ala.  169,  7  South.  268,  16  Am.  St. 
Rep.  31. 

IS  Boyd  V.  State,  88  Ala.  169,  7  South.  268,  16  Am.  St  Rep.  31. 

i«  Neal  V.  State,  54  Ga.  281. 


§§  125-126)  CUSTODY  OF  CHILDREN.  267 

daughter  in  the  house  alone,  tied  to  a  piece  of  furniture;  ^^  or  keeps 
his  blind  son  shut  up  for  several  days  in  winter,  in  a  cold,  damp 
cellar;  ^^  or  strikes  his  son  several  times  in  the  face  with  his  fist, 
and  with  the  butt  end  of  a  stick,  and  uses  language  showing  passion.^® 
In  all  cases  the  legal  presumption  is  that  the  correction  was  proper, 
and  the  burden  of  proof  is  on  him  who  contends  that  it  was  other- 
wise.^" 

CUSTODY  OF  CHILDREN. 

125.  At  common  law,  in  England,  the  father,  and  on  his  death  the 

mother,  -was  entitled,  as  a  matter  of  course,  to  the  custody 
and  control  of  their  minor  children  except  in  case  of  their 
grross  unfitness.  Equity,  however,  would  not  allow^  the  right 
to  control  as  against  the  w^ell-being  of  the  child.  The  com- 
mon-law doctrine  has  also  been  modified  by  statute  in  Eng- 
land. 

126.  In  this  country  the  courts  recognize  the  parental  right  of  cus- 

tody in  the  different  jurisdictions,  but  the  prevailing  doc- 
trine is  that,  in  awarding  the  custody  of  a  child,  the  welfare 
of  the  child  is  the  controlling  consideration.  The  courts  con- 
sider, not  only  the  fitness  of  the  persons  contending  for  the 
custody,  but  the  condition  and  future  prospects  of  the  child, 
and  the  wishes  of  the  child  w^here  it  is  old  enough  to  decide 
intelligently. 

At  common  law  the  father  is  entitled  to  the  custody  of  his  minor 
child.  Some  cases  recognize  this  as  an  absolute  right,  except  in  the 
case  of  the  most  flagrant  unfitness,  and  have  awarded  the  father  the 
custody  of  his  child  without  taking  the  interests  of  the  child  into 
consideration  at  all.^^  The  right  has  been  upheld  even  to  the  extent 
of  allowing  the  father  to  take  an  infant  from  its  mother's  breast.^^ 
After  the  death  of  the  father,  the  right  to  the  custody  of  the  chil- 
dren passes  to  the  mother.^^ 

17  Hinkle  v.  State,  127  Ind.  490,  26  N.  E.  777. 

18  Fletcher  v.  People,  52  111.  3i)5. 

19  Boyd  V.  State,  88  Ala.  1G9,  7  South.  268,  16  Am.  St.  Rep.  31. 
2  0  See  Anderson  v.  State,  3  Head  (Tenn.)  455,  75  Am.  Dec.  774. 

21  Ex  parte  Hopkins,  3  P.  Wms.  152;  Rex  v.  De  Mauneville,  5  East,  221; 
Rex  V.  Greeuhill,  4  Adol.  &  E.  624;  In  re  Andrews,  L.  R.  8  Q.  B.  153;  People 
V.  Olmstead,  37  Barb.  (N.  Y.)  9. 

2  2  Rex  V.  De  Manneville,  5  East,  221. 

23  Villareal  v.  Mellish,  2  Swanst.  536;  People  v.  Wilcox,  22  Barb.  (N.  Y.) 
178 ;   Cook  v.  By  bee,  24  Tex.  278. 


2G8  RIGHTS   OP   PARENTS   AND   OF   CIIILDUEN.  (Ch.  10 

The  common-law  rule  of  the  husband's  paramount  right  to  the 
custody  of  his  children  was  modified  in  England  by  an  act  passed  in 
1839,  known  as  "Talfourd's  Act,"  conferring  authority  on  the  Court 
of  Chancery  to  award  to  the  mother  the  custody  of  children  under 
the  age  of  7,^*  and  again  by  the  "Infant's  Custody  Act,"  of  1873, 
conferring  such  authority  as  to  children  under  16.^^  Long  prior  to 
these  acts,  the  Court  of  Chancery  in  England  had  departed  from 
the  strict  rule  of  the  common  law,  and  had  refused  to  recognize  any 
right  in  the  father  to  demand  the  custody  of  his  child,  regardless  of 
the  child's  interests,  and  had  interfered  to  protect  the  welfare  of  the 
child;  ^°  and  the  rule  there  is  now  well  settled  that  a  court  exercising 
chancery  jurisdiction  will  primarily  consider  the  welfare  of  the  child. ^^ 

Generally,  in  this  country,  the  courts  of  law,  as  well  as  those  of 
equity,  while  acknowledging  the  general  rule  that  the  father,  and 
on  his  death  the  mother,  is  entitled  to  the  child's  custody,  modify 
the  rule  to  a  greater  or  less  extent  by  adopting  the  equitable  prin- 
ciple that  this  right  must  yield  to  considerations  affecting  the  well- 
being  of  the  child. ^*  There  is  some  conflict  in  the  cases ;  but  the 
great  weight  of  authority  establishes  the  following  propositions : 

(1)  Though  the  courts  have  a  discretion  in  contentions  over  the 
custody  of  children,  and  will  take  into  consideration  the  welfare  of 
the  child,  they  cannot  act  arbitrarily,  and  disregard  the  rights  of  the 
father,  merely  because  the  prospects  and  surroundings  of  the  child 
will  be  brighter  if  he  is  awarded  to  some  other  and  more  wealthy 
person.  The  right  of  the  father  is  generally  held  to  be  a  paramount 
right,  if  he  is  a  fit  person.^^     It  would  be  absurd  to  say  that  if  a 


24  St.  2  &  3  Vict.  c.  54.  26  St.  36  &  37  Vict.  c.  12. 

28  2  Story,  Eq.  Jur.  §  1341;  Wellesley  v.  Duke  of  Beaufort,  2  Russ.  1; 
Wellesley  v.  Wellesley,  2  Bligh.  (N.  S.)  141. 

2T  Keg.  V.  Gyngall  [1803]  2  Q.  B.  232. 

2  8  Dumain  v.  Gwymie,  10  Allen  (Mass.)  270;  Wadleigh  v.  Newliall  (C.  C.) 
136  Fed.  941;  Ward  v.  Ward,  34  Tex.  Oiv.  App.  104,  77  S.  W.  829;  In  re 
Smith,  13  111,  138;  Cowls  v.  Cowls,  3  Gilman  (111.)  435,  44  Am.  Dec.  708;  State 
V.  Baird,  21  N.  J.  Eq.  384;  State  v.  Flint,  63  Minn.  187,  65  N.  W.  272; 
Sciiroeder  v.  State,  41  Neb.  745,  60  N.  W.  89 ;  Slater  v.  Slater,  90  Va.  845,  20  S. 
E.  780 ;  Corrie  v.  Corrie,  42  Mich.  509,  4  N.  W.  213 ;  Rowe  v.  Rowe,  28  Mich. 
353 ;  In  re  Heather  Children,  50  Mich.  261,  15  N.  W.  487,  and  cases  hereafter 
cited. 

2  8  Verser  v.  Ford,  37  Ark.  27;  Terry  v.  Johnson,  73  Neb.  653,  103  N.  W.  319; 
Gilmore  v.  Kitson,  165  Ind.  402,  74  N.  E.  1083 ;  Parker  v.  Wiggins  (Tex.  Civ. 
App.)  86  S.  W.  788;    Hernandez  v.  Thomas,  50  Fla.  522,  39  South.  641,  2  L. 


§    125-126)  CUSTODY    OF    CHILDREN.  269 

father  is  poor,  and  occupies  a  humble  station  in  life,  he  may  be  de- 
prived of  the  custody  of  his  children,  because  a  more  wealthy  and 
refined  person  is  willing  to  take  them,  and  can  give  them  better  ad- 
vantages. As  was  said  by  the  Arkansas  court:  "It  is  one  of  the 
cardinal  principles  of  nature  and  of  law  that,  as  against  strangers, 
the  father,  however  poor  and  humble,  if  able  to  support  the  child 
in  his  own  style  of  life,  and  of  good  moral  character,  cannot,  without 
the  most  shocking  injustice,  be  deprived  of  the  privilege  by  any  one 
whatever,  however  brilliant  the  advantage  he  may  offer.  It  is  not 
enough  to  consider  the  interests  of  the  child  alone."  ^°  While  the 
welfare  of  the  child  is  always  to  be  considered,  due  weight  must  al- 
ways be  given  to  the  legal  rights  of  the  father.  "The  discretion  to  be 
exercised  is  not  an  arbitrary  one,  but,  in  the  absence  of  any  positive 
disqualification  of  the  father  for  the  proper  discharge  of  his  parental 
duties,  he  has,  as  it  seems  to  us,  a  paramount  right  to  the  custody  of 
his  infant  child,  which  no  court  is  at  liberty  to  disregard.  And,  while 
we  are  bound  to  also  regard  the  permanent  interests  and  welfare  of 
the  child,  it  is  to  be  presumed  that  its  interests  and  welfare  will  be 
best  promoted  by  continuing  that  guardianship  which  the  law  has 
provided,  until  it  is  made  plainly  to  appear  that  the  father  is  no  long- 
er worthy  of  the  trust."  ^^ 

(2)  The  best  interests  of  the  child  are  always  to  be  considered, 
having  due  regard  to  the  parental  rights  of  the  father.^  ^  pg^  cases 
can  be  found  in  which  a  child  has  been  taken  from  a  father,  who 
was  able  and  willing  to  support  it,  and  who  had  been  guilty  of  no 
breach  of  duty  towards  it,  and  given  to  a  stranger  or  to  a  more  dis- 


R.  A.  (N.  S.)  203,  111  Am.  St.  Rep.  137;  State  v.  Richardson,  40  N.  H.  272; 
People  V.  Sinclair,  47  Misc.  Rep.  230,  95  N.  Y.  Supp.  861 ;  Rust  v.  Vanvacter, 
0  W.  Va.  600;  Hanson  v.  Walts,  40  Ind.  170;  Draper  v.  Draper,  68  111.  17; 
State  V.  Barney,  14  R.  I.  62;  Johnson  v.  Terry,  34  Conn.  259 ;  People  v.  Olm- 
stead,  27  Barb.  (N.  Y.)  9 ;  Lovell  v.  House  of  Good  Shepherd,  9  Wash.  419,  37 
Pac.  660,  43  Am.  St.  Rep.  839;  Brinster  v.  Compton,  68  Ala.  299;  Slater  v. 
Slater,  90  Va.  845,  20  S.  E.  780;  Latham  v.  Ellis,  116  N.  C.  30,  20  S.  E.  1012. 
80  Verser  v.  Ford,  37  Ark.  27 ;  Hernandez  v.  Thomas,  50  Fla.  522.  36  South. 
.641,  2  L.  R.  A.  (N.  S.)  203,  111  Am.  St.  Rep.  137;  Cormack  v.  Marshall,  122 
111.  App.  208. 

31  State  V.  Richardson,  40  N  H.  272;  Taylor  v.  Taylor,  103  Va.  750,  50  S. 
E.  273. 

32  Commonwealth  v.  Strickland,  27  Pa.  Super.  Ct.  309;  Parker  v.  Wiggins 
<Tex.  Civ.  App.)  86  S.  W.  788;  Taylor  v.  Taylor,  103  Va.  750,  50  S.  E.  273; 
Wadleigh  v.  Newhall  (C.  C.)  136  Fed.  i>iL 


270  RIGHTS  OF   PARENTS  AND   OF   CHILDREN.  (Cll.  10 

tant  relative.  An  examination  of  the  cases  will  show  that  where 
the  supposed  interests  of  the  child  have  been  allowed  to  control  as 
against  the  right  of  the  father,  the  father  has  been  guilty  of  some 
breach  of  his  duty  to  the  child.  If  a  father,  or  one  standing  in  loco 
parentis,  is  a  drunkard,  or  a  criminal,  or  cruel,*'  or  shiftless,  or 
otherwise  ynfit,'*  the  interests  of  the  child  should  outweigh  his  pa- 
rental right  of  custody.  So,  if  a  father  deserts  his  wife  and  child  when 
the  child  is  helpless,  and  leaves  her  or  others  to  perform  his  duties 
for  him,  the  welfare  of  the  child  may  outweigh  his  parental  right, 
when  he  subsequently  seeks  the  aid  of  the  court  to  regain  the  cus- 
tody which  he  has  thus  relinquished.' '^  And  even  where  he  relin- 
quishes the  custody  of  his  child  to  another  at  the  latter's  request,  and 
for  what  he  supposes  to  be  the  interests  of  the  child,  he  may  be  re- 
garded, in  a  sense,  as  having  neglected  his  duty  as  a  father;  and  his 
right  to  the  child's  custody  when  he  seeks  to  regain  it,  particular- 
ly after  the  lapse  of  years,  will  have  to  yield  to  the  child's  interests.'® 
Almost  all  the  cases  in  which  the  father's  right  to  the  custody  of 
his  child  has  been  denied  are  cases  in  which  he  was  unfit  to  have 
the  care  of  the  child,  or  else  cases  in  which  he  had  relinquished  his 
right  for  a  time,  and  sought  the  aid  of  the  court  to  regain  custody. 
Manifestly,  in  these  cases,  he  has  no  right  to  complain  if  the  court 
regards  the  child's  welfare  as  the  controlling  consideration,  even 
where  he  is  able,  ready,  and  willing  to  perform  his  duty  in  the 
future.'^ 

83  Marshall  v.  Reams,  32  Fla.  499,  14  South.  93,  37  Am.  St.  Rep.  118. 

84  Chapsky  v.  Wood,  26  Kan.  650,  40  Am.  Rep.  321 ;  In  re  Brown,  117  111. 
App.  332;  Plahn  v.  Dribred,  36  Tex.  Civ.  App.  600,  83  S.  W,  867;  Cowls  v. 
Cowls,  3  Oilman  (111.)  435,  44  Am.  Dec.  70S. 

35  McShan  v.  McShan,  56  Miss.  413.  And  see  Schroeder  v.  State,  41  Neb.  745, 
60  N.  W.  89;   Hewitt  v.  Long,  76  111.  399. 

36  Chapsky  v.  Wood,  26  Kan.  650,  40  Am.  Rep.  321 ;  Washaw  v.  Gimble,  50 
Ark.  351,  7  S.  W.  389 ;  People  v.  Porter,  23  111.  App.  196.  The  child's  interests. 
of  course,  may  require  it  to  be  restored  to  the  father  in  such  a  case.  See 
Armstrong  v.  Stone,  9  Grat.  (Va.)  102. 

3  7  U.'  S.  V.  Green,  3  Mason,  482,  Fed.  Cas.  No.  15,256;  Mercein  v.  People,  25 
Wend.  (N.  Y.)  64,  35  Am.  Dec.  6-53;  Waldron's  Case,  13  Johns.  (N.  Y.)  418; 
Corrie  v.  Corrie,  42  Mich.  509,  4  N.  W.  213;  Ex  parte  Schumpert,  6  Rich. 
Law  (S.  C.)  344 ;  Bonnett  v.  Bonnett,  61  Iowa,  199,  16  N.  W.  91,  47  Am.  Rep. 
810;  State  v.  Stigall,  22  N.  J.  Law,  280;  Bryan  v.  Lyon,  104  Ind.  227,  3  N.  E. 
880,  54  Am.  Rep.  309;  In  re  Smith,  13  111.  138;  Gishwiler  v.  Dodez,  4  Ohio 
St  015;   McShan  v.  McShan,  56  Miss.  413;    Washaw  v.  Gimble,  50  Ark.  351. 


§§    125-126)  CUSTODY   OF   CHILDREN.  271 

"As  to  the  question  of  the  right  of  the  father  to  have  the  custody 
of  his  infant  child,  in  a  general  sense  it  is  true.  But  this  is  not  on 
account  of  any  absolute  right  of  the  father,  but  for  the  benefit  of  the 
infant;  the  law  presuming  it  to  be  for  its  interest  to  be  under  the 
nurture  and  care  of  his  natural  protector,  both  for  maintenance  and 
education.  When,  therefore,  the  court  is  asked  to  lend  its  aid  to 
put  the  infant  into  the  custody  of  the  father,  and  to  withdraw  him 
from  other  persons,  it  will  look  into  all  the  circumstances,  and  as- 
certain whether  it  will  be  for  the  real,  permanent  interest  of  the 
infant;  and,  if  the  infant  be  of  sufficient  discretion,  it  will  also  con- 
sult its  personal  wishes.  It  will  free  it  from  all  undue  restraint, 
and  endeavor,  as  far  as  possible,  to  administer  a  conscientious,  pa- 
rental duty  with  reference  to  its  welfare.  It  is  an  entire  mistake  to 
suppose  the  court  is  at  all  events  bound  to  deliver  over  the  infant 
to  his  father,  or  that  the  latter  has  an  absolute  vested  right  in  the 
custody."  ^*  "When  an  infant  child  or  minor  is  out  of  the  posses- 
sion and  custody  of  the  father,  and  habeas  corpus  is  resorted  to  by 
the  latter  to  obtain  such  custody,  it  does  not  follow  as  necessarj- 
matter  of  right  that  the  prayer  of  the  petition  will  be  granted.  The 
court  is  clothed  with  a  sound  discretion  to  grant  or  refuse  relief, 
always  to  be  exercised  for  the  benefit  of  the  infant  primarily,  but 
not  arbitrarily  in  disregard  of  the  father's  natural  right  to  be  pre- 
ferred. If  the  father  be  reasonably  suitable,  and  able  to  maintain 
and  rear  his  child,  his  prayer  should  ordinarily  be  granted."  ^® 

There  may  be  cases  in  which  the  court,  from  a  consideration  of 
the  child's  welfare,  would  not  award  its  custody  to  the  father,  even 
though  no  fault  or  neglect  of  duty  could  be  imputed  to  him.  A 
child  of  very  tender  years  needs  the  care  and  attention  of  a  mother, 
and  even  were  she  to  desert  the  father,  without  any  fault  on  his 
part,  the  child  would  not  be  taken  from  her,  at  least  until  it  has 
reached  an  age  when  the  father  can  properly  care  for  it.*"     It  can 


7  S.  W.  389;  Gibbs  v.  Brown,  68  Ga.  803;  Ex  parte  Murpby,  75  Ala.  409; 
Brinster  v.  Compton,  68  Ala.  299 ;  Sturtevant  v.  State,  15  Neb.  459,  19  N.  W. 
617,  48  Am.  Rep.  349. 

88  Per  Stoi-y,  J.,  In  U.  S.  v.  Green,  3  Mason,  482,  Fed.  Cas.  No.  15,250. 

8»  Brinster  v.  Compton,  68  Ala.  2D9. 

40  In  re  Bort,  25  Kan.  308,  37  Am.  Rep.  255 ;  McKim  v,  McKim,  12  R.  1. 
4G2,  34  Am.  Rep.  694 ;  Ex  parte  Schumpert,  6  Rich.  Law  (S.  C.)  344 ;  Com.  v. 
Addicks,  5  Bin.  (Pa.)  520;    State  v.  Paine,  4  Humph.  (Tenu.)  523;    State  v. 


272  RIGHTS  OP  PARENTS  AND   OF   CHILDREN.  (Ch.  10 

only  be  in  such  cases  as  this,  where  the  child,  from  its  extreme 
youth  or  sickness,  needs  a  mother's  care,  that  the  court  can  deprive 
the  father  of  the  right  to  the  child's  custody,  where  the  father  can 
properly  care  for  the  child,  and  is  in  every  way  a  fit  person  to  have 
the  charge  of  it,  and  has  not  in  any  way  neglected  the  child  or  relin- 
quished his  rights.  This  is  true  in  contentions  between  father  and 
mother  after  they  have  separated,  as  well  as  in  contentions  between 
the  father  and  strangers.*^ 

(3)  In  arriving  at  a  determination  as  to  what  is  best  for  the  wel- 
fare and  happiness  of  the  child,  the  court  will  consider  the  ties  of 
nature  and  of  association ;  *^  the  character  and  feelings  of  the  par- 
ties contending  for  the  custody;*'  the  age,**  health,*^  and  sex  of 
the  child;   the  moral  or  immoral  surroundings  of  its  life;    the  bene- 


King,  Ga.  Dec.  93,  pt.  1;  Miner  v.  Miner,  11  111.  43;  Anon.,  55  Ala.  428;  Com. 
V.  Demott,  64  Pa.  305,  note;  Chandler  v.  Chandler,  24  Mich.  176;  Scoggins  v. 
Scoggins,  80  N.  C.  318.  But  see  Hewitt's  Case,  11  Rich.  Law  (S.  C.)  326; 
Carr  v.  Carr,  22  Grat.  (Va.)  168. 

41  See  ]\lcKim  v.  IMcKim.  12  R.  I.  462,  34  Am.  Rep.  694;  Com.  v.  Addicks, 
2  Serg.  &  R.  (Pa.)  174 ;  Com.  v.  Briggs,  16  Pick.  (Mass.)  203 ;  Bennett  v.  Ben- 
nett, 43  Conn.  313;  Scoggins  v,  Scoggins,  80  N.  C.  318;  Welch  v.  Welch,  33 
Wis.  534 ;  Carr  v,  Carr,  22  Grat.  (Va.)  168.  Where  a  husband  and  wife  have 
separated  because  unable  to  agree,  and  there  is  no  evidence  that  they  are  not 
equally  fit  custodians  of  their  son  five  years  old,  the  father,  by  reason  of 
his  paramount  right  in  law,  will  be  awarded  such  custody.  People  v.  Sin- 
clair, 47  Misc.  Rep.  230,  95  N.  Y.  Supp.  861. 

42  Thus,  where  the  father  has  allowed  his  child  to  be  cared  for  and 
raised  by  others  until  it  has  become  attached  to  them,  this  fact  will  influence 
the  court  in  determining  whether  it  will,  after  the  lapse  of  years,  give  the 
custody  to  the  father.  "It  is  an  obvious  fact  that  ties  of  blood  weaken,  and 
ties  of  companionship  strengthen,  by  lapse  of  time;  and  the  prosperity  and 
welfare  of  the  cliild  depend  on  the  number  and  strength  of  these  ties,  as  well 
as  on  the  ability  to  do  all  which  the  promptings  of  these  ties  compel."  Chap- 
sky  V.  Wood,  26  Kan.  650,  40  Am.  Rep.  321.  And  see  Washaw  v.  Glmble,  50 
Ark.  351,  7  S.  W.  389 ;  note  60,  infra. 

43  Richards  v.  Collins,  45  N.  J.  Eq.  283,  17  Atl.  831,  14  Am.  St  Rep.  726; 
Sheers  v.  Stein,  75  Wis.  44,  43  N.  W.  728,  5  L.  R.  A.  781;  Holmes'  Case,  19 
How.  Prac.  (N.  Y.)  329. 

44  Haskell  v.  Haskell,  152  Mass.  16,  24  N.  E.  859 ;  McKim  v.  McKim,  12 
R.  I.  402,  34  Am.  Rep.  694;  notes  40,  supra,  and  53,  infra. 

46  Richards  v.  Collins,  45  N.  J.  Eq.  283,  17  Atl.  831,  14  Am.  St.  Rep.  726 ; 
McKim  v.  McKim,  12  R.  I.  462,  34  Am.  Rep.  694;  Gardenhire  v.  Hinds,  1  Head 
(Teun.)  402. 


§§    125-126)  CUSTODY    OF    CHILDREN.  273 

fits  of  education  and  developement ;    and  the  pecuniary  prospects.*' 
All  these  considerations  enter  into  the  judicial  determination.*^ 

Where  the  child  has  reached  the  age  of  discretion,  it  will  often  be 
allowed  to  make  its  own  choice,  and  its  wishes  will  always  be  taken 
into  consideration.*^  But  the  choice  of  the  child  is  not  a  control- 
ling consideration.  Welfare  controls  choice,  ■  and'  the  court  will 
not  permit  the  choice  of  the  child  to  lead  it  into  an  improper  cus- 
tody,*® In  this  connection  the  rights  of  parents  and  guardians  should 
also  be  respected,  and  such  rights  will  not  be  disregarded  by  the 
court  to  gratify  the  mere  wishes  of  a  child,  when  the  parent  or 
guardian  is  a  proper  person  to  be  intrusted  with  its  custody."*"  There 
is  no  fixed  age  when  the  discretion  of  a  child  begins,  but  mental  ca- 
pacity is  the  test.'^ 

In  Cases  of  Divorce. 

Where  a  divorce  is  granted  either  to  the  husband  or  wife,  it  does 
not  follow  as  a  matter  of  course  that  the  complainant  in  the  divorce 
suit  is  entitled  to  the  custody  of  the  infant  children.  Here,  as  in 
other  cases,  the  best  interests  of  the  child  will  determine  its  cus- 
tody/^   If,  for  instance,  the  child  is  of  such  tender  years,  or  in  such 


*«  Armstrong  v.  Stone,  9  Grat.  (Va.)  102;  Lyons  v.  Blenkin,  Jac.  245 ;  Gar- 
denhire  v.  Hinds,  1  Head  (Tenn.)  402.  See,  also,  Dunkin  v.  Seifert,  123  Iowa, 
64,  98  N.  W.  558. 

*~  Marshall  v.  Reams,  32  Fla.  499,  14  South.  95,  37  Am.  St.  Rep.  118.  See 
Slater  v.  Slater,  90  Va.  845,  20  S.  E.  780. 

*8  Marshall  v.  Reams,  32  Fla.  499,  14  South.  95,  37  Am.  St.  Rep.  118;  In 
re  Goodenough,  19  Wis.  274;  U.  S.  v.  Green,  3  Mason,  482,  Fed.  Cas.  No. 
15,256;  State  v.  Bratton,  15  Am.  Law  Reg.  (N.  S.)  359;  Clark  v.  Bayer,  32 
Ohio  St.  299,  30  Am.  Rep.  593;  Brinster  v.  Compton,  68  Ala.  299;  Merritt  v. 
Swimley,  82  Va.  433,  3  Am.  St.  Rep.  115;  State  v.  Paine,  4  Humph.  (Tenn.) 
523 ;  Shaw  v.  Nachtwey,  43  Iowa,  653 ;  Richards  v.  Collins,  45  N.  J.  Eq.  283, 
17  Atl.  831,  14  Am.  St.  Rep.  726 ;    Hewitt  v.  Long,  76  111.  399. 

*«  Marshall  v.  Reams,  32  Fla.  499,  14  South.  95,  37  Am.  St.  Rep.  118. 

10  Marshall  v.  Reams,  32  Fla.  499,  14  South.  95,  37  Am.  St.  Rep.  118. 

Bi  Marshall  v.  Reams,  32  Fla.  499,  14  South.  95,  37  Am.  St.  Rep.  118 ; 
Richards  v.  Collins,  45  N.  J.  Eq.  283,  17  Atl.  831,  14  Am.  St.  Rep.  726. 

"Adams  v.  Adams,  1  Duv.  (Ky.)  167;  Giles  v.  Giles,  30  Neb.  624,  46  N. 
W.  916 ;  Haskell  v.  Haskell,  152  Mass.  16,  24  N.  E.  859;  In  re  Bort,  25  Kan. 
308,  37  Am.  Rep.  255 ;  Lusk  v.  Lusk,  28  Mo.  91 ;  Welch  v.  Welch,  33  Wis.  534 ; 
Irwin  V.  Irwin,  96  Ky.  318,  28  S.  W.  664,  and  30  S.  W.  417 ;  Luck  v.  Luck, 
92  Cal.  653,  28  Pac.  787;  Kentzler  v.  Kentzler,  3  Wash.  St.  166,  28  Pac.  370, 
28  Am.  St.  Rep.  21 ;  Umlauf  v.  Umlaut",  128  111.  378,  21  N.  E.  600;  Cowls  v. 
Cowls,  3  Gllman  (111.)  435,  44  Am.  Dec.  708, 

TIFF.P.&  D.Rel.(2d  Ed.)— 18 


274  RIGHTS  OF  PARENTS  AND   OF  CHILDREN.  (Ch.  10 

delicate  health,  that  it  needs  a  mother's  care,  particularly  if  it  is 
a  girl,  its  custody  will  ordinarily  be  awarded  to  the  mother,  at  least 
temporarily,  even  where  the  husband  is  without  fault.'''  And  if 
one  of  the  parties  is  an  unfit  person  to  have  the  custody  of  the  chil- 
dren, and  the  other  is  a  fit  person,  their  custody  will  be  awarded  to 
the  latter." 

The  decree  in  a  divorce  suit  does  not  permanently  settle  the  right 
to  custody  of  children  in  awarding  the  custody  to  one  of  the  parties. 
A  change  of  circumstances  may  authorize  the  court  to  order  a  change 
of  custody.'^''  For  instance,  should  the  mother,  to  whom  the  custody 
of  a  child  is  awarded  on  divorce,  afterwards  become  an  unfit  person 
to  be  intrusted  with  the  child,  the  father,  if  a  fit  person,  might  obtain 
the  custody.  So,  where  the  spouse  to  whom  the  custody  is  awarded, 
even  though  it  may  have  been  so  awarded  because  of  the  unfitness 
of  the  other,  afterwards  dies,  the  other  may  obtain  the  custody,  by 
showing  that  he  has  become  fit  for  it,  and  that  it  will  be  for  the  child's 
interest" 

Agreement  as  to  Custody  of  Child. 

The  weight  of  authority  seems  to  be  in  favor  of  the  position  that 
an  agreement  entered  into  by  a  father,  for  the  relinquishment  of  his 
right  to  the  custody  of  his  child,  is  void  as  against  public  policy,  and 
will  not  even  bind  him.'''     "The  care  and  custody  of  minor  children 


B3  See  the  cases  above  cited.  And  see  Messenger  v.  Messenger,  56  Mo.  329; 
Lusk  V,  Lusk,  28  Mo.  91;  Chandler  v.  Chandler,  24  Mich.  176;  Klein  v. 
Klein,  47  Mich.  518,  11  N.  W.  367;  Draper  v.  Draper,  68  111.  17.  But  see 
Carr  v.  Carr,  22  Grat  (Va.)  168 ;   Welch  v.  Welch,  33  Wis.  534. 

64  Irwin  V.  Irwin,  96  Ky.  318,  30  S.  W.  417 ;  Thiesing  v.  Thiesing,  26  S.  W. 
718,  16  Ivy.  Law  Rep.  115;  Flory  v.  Ostrom,  92  Mich.  622,  52  N.  W.  1038; 
Schichtl  V.  Schichtl,  88  Iowa,  210,  55  N.  W.  309;  Miner  v.  Miner,  11  111.  43; 
Cowls  V.  Cowls,  3  Oilman  (111.)  435,  44  Am.  Dec.  70S;  Umlauf  v.  Umlauf,  128 
111.  378,  21  N.  E.  600. 

6  0  Draper  v.  Draper,  68  111.  17;  Oliver  v.  Oliver,  151  Mass.  349,  24  N.  E.  51. 
Compare  Wilkinson  v.  Deming,  80  111.  342,  22  Am.  Rep.  192. 

6  6  Bryan  v.  Lyon,  104  Ind.  227,  3  N.  E.  880,  54  Am.  Rep.  309.  And  see 
Schammel  v.  Schammel,  105  Cal.  258,  38  Pac.  729. 

6  7  Queen  v.  Smith,  22  Law  J.  Q.  B.  116;  In  re  Edwards,  42  Law  J.  Q.  B. 
99;  Hernandez  v.  Thomas,  50  Fla.  522,  39  South.  641,  2  L.  R.  A.  (N.  S.)  203, 
111  Am.  St.  Rep.  137 ;  Cormack  v.  Marshall,  122  111.  App.  208 ;  In  re  Galle- 
her,  2  Cal.  App.  304,  84  Pac.  352 ;  Carey  v.  Hertel,  37  Wash.  27,  79  Pac.  482 ; 
State  v.  Baldwin,  5  N.  J.  Eq.  454,  45  Am.  Dec.  397;  Chapsky  v.  Wood,  26  Kan. 
650,  40  Am.  Rep.  321 ;   Cook  v.  Bybee,  24  Tex.  278;   Brooke  v.  Logan,  112  Ind. 


§§    125-126)  CUSTODY   OF    CHILDREN.  275 

is  a  personal  trust  in  the  father,  and  he  has  no  general  power  to  dis- 
pose of  them  to  another."  ''^  Such  an  agreement,  however,  is  not  to 
be  entirely  ignored,  "It  is  to  be  considered,  not  for  the  purpose  of 
fixing  the  rights  of  the  parties,  but  for  the  purpose  of  shedding  light 
upon  their  actual  relations  and  feelings  for  the  infant,  and  assisting 
the  exercise  of  a  wise  discretion  by  the  court  as  to  what  disposition 
should  be  made  of  it  for  the  promotion  of  its  own  welfare."  ^®  In 
other  words,  although  the  law  does  not  countenance  agreements  where- 
by a  father  seeks  to  transfer  to  another  the  custody  of  his  child,  such 
agreements,  when  carried  out  by  the  parties,  may  have  the  indirect 
effect  of  preventing  the  father  from  reasserting  his  right,  the  inter- 
ests of  the  child  in  such  cases  being  the  controlling  consideration. 
It  has  frequently  been  held  that  the  custody  of  a  child  will  not  be  re- 
stored to  a  parent  who  has  transferred  its  custody  to  another,  where 
the  child,  by  being  thus  separated  from  him  for  years,  has  transferred 
its  interests  and  affections  to  its  adopted  home,  and  become  estranged 
from  its  parent,  on  the  ground  that  it  would  be  a  serious  injury  to 
the  child  to  sever  the  ties  that  bind  it  to  its  adopted  home  and  its 
adopted  parents,  and  compel  it  to  return.^**  "After  the  affections  of 
both  child  and  adopted  parent  become  engaged,  and  a  state  of  things 
has  arisen  which  cannot  be  altered  without  risking  the  happiness  of 
the  child,  and  the  father  wants  to  reclaim  it,  the  better  opinion  is 


1S3,  13  N.  E.  669,  2  Am.  St.  Rep.  177 ;  Washaw  v.  Gimble,  50  Ark.  351,  7  S. 
W.  3S9;  State  v.  Libbey,  44  N.  H.  321.  82  Am.  Dec.  223;  People  v.  Mercein,  3 
Hill  (N.  Y.)  410,  38  Am.  Dec.  644.  This  principle  prevents  a  father  from  mak- 
ing an  irrevocable  agreement  with  bis  wife,  on  a  separation,  by  which  he  relin- 
quishes to  her  the  custody  of  their  children.  People  v.  Mercein,  supra.  See, 
also,  Johnson  v.  Terry,  34  Conn.  259;  Town  of  Torrington  v.  Town  of  Nor- 
wich, 21  Conn.  543 ;  Van  Sittart  v.  Van  Sittart,  2  De  Gex  &  J.  249 ;  Hope  v. 
Hope,  26  Law  J.  Ch.  417.  Contra,  State  v.  Smith,  6  Greenl.  (Me.)  463,  20  Am. 
Dec.  324 ;  Bently  v.  Terry,  59  Ga.  555,  27  Am.  Rep.  399.     See  note  62,  infra. 

0  8  State  V.  Baldwin,  5  N.  J.  Eq.  454,  45  Am.  Dec.  397. 

6  9  Weir  V.  Marley,  99  Mo.  484,  12  S.  W.  798,  6  L.  R.  A.  672. 

«o  Weir  v.  Marley,  99  Mo.  484,  12  S.  W.  798,  6  L.  R.  A.  672 ;  Chapsky  v. 
Wood,  26  Kan.  650,  40  Am.  Rep.  321 ;  Washaw  v.  Gimble,  50  Ark.  351,  7  S.  W. 
389;  Richards  v.  Collins,  45  N.  J.  Eq.  283,  17  Atl.  831,  14  Am.  St.  Rep.  726 ; 
Bently  v.  Terry,  59  Ga.  555,  27  Am.  Rep.  399 ;  Merritt  v.  Swimley,  82  Va.  433, 
3  Am.  St.  Rep.  115;  Bennett  v.  Bennett,  61  Iowa,  199,  16  N.  W.  91,  47  Am. 
Rep.  810;  Sheers  v.  Stein,  75  Wis.  44,  43  N.  W.  728,  5  L.  R.  A.  781;  Hoxsie 
V.  Potter,  16  R.  I.  374,  17  Atl.  129;  In  re  Murphy,  12  How.  Prac.  (N.  Y.)  513; 
Clark  V.  Bayer,  32  Ohio  St.  299,  30  Am.  Rep.  593;  Parker  v.  Wiggins  (Tex. 
Civ.  App.)  86  S.  W.  788. 


276  RIGHTS  OF   PARENTS  AND  OF  CHILDREN.  (Ch.  10 

that  he  is  not  in  a  position  to  have  the  interference  of  the  court  in 
his  favor.  His  parental  right  must  yield  to  the  feelings,  interests,  and 
rights  of  others  acquired  with  his  consent."  *^ 

Some  of  the  courts,  contrary  to  the  view  above  stated,  have  held 
that  a  parent  can,  by  agreement,  surrender  the  custody  of  his  infant 
child  so  as  to  make  the  custody  of  him  to  whom  he  surrenders  it  le- 
gal as  against  him.®^  Even  in  these  jurisdictions,  however,  a  parent 
cannot,  by  surrendering  the  custody  of  his  child  to  another,  prevent 
the  courts  from  changing  the  custody  where  the  welfare  of  the  child 
demands  it.®^ 

As  has  been  shown  in  a  previous  chapter,  statutes  have  been  enact- 
ed in  most  states  by  which  parents  may  consent  to  the  adoption  of 
their  children  by  another.  Here,  of  course,  the  legal  adoption  is  bind- 
ing.** So,  as  will  be  seen  in  a  subsequent  chapter,  parents  may  bind 
out  their  children  as  apprentices." 

PARENT'S   RIGHT   TO    CHILD'S   SERVICES  AND   EARNINGS. 

127.  Tlie  father,  and,  by  tlie  mreiglit  of  authority,  the  mother  on  his 
death,  is  entitled  to  a  minor  child's  services  and  earnings, 
xrhile  the  child  lives  x^ith  and  is  supported  by  them,  and  has 
not  been  emancipated.  When  he  has  been  emancipated,  ho^v- 
ever,  this  right  ceases,  and  with  it,  of  course,  all  rights  ivhich 
are  dependent  upon  it. 

So  long  as  a  minor  child  lives  with  or  is  supported  by  its  parents, 
and  has  not  been  emancipated,**  the  father  is  entitled  to  its  services 
and  earnings.*'     The  right  to  a  child's  services  is  generally  said  to 

«i  Clark  V.  Bayer,  32  Ohio  St.  2D9,  30  Am.  Rep.  593. 

6  2  Boimett  V.  Bonnett,  61  Iowa,  199,  16  N.  W.  91,  47  Am.  Rep.  810;  Miller  v. 
Miller,  123  Iowa,  1G5,  98  N.  W.  631.  Ajid  see  Plalin  v.  Dribred,  36  Tex.  Civ. 
App.  600,  83  S.  W.  867 ;  Bently  v.  Terry,  59  Ga.  555,  27  Am.  Rep.  399 ;  State 
V.  Smith,  6  Greenl.  (Me.)  463,  20  Am.  Dec.  324;  McDowle's  Case,  8  Johns.  (N. 
Y.)  328;  State  v.  Barrett,  45  N.  H.  15;  Curtis  v.  Curtis,  5  Gray  (Mass.)  535; 
Dumain  v.  Gwynne,  10  Allen  (Mass.)  270;  Com.  v.  Barney,  4  Brewst.  (Pa.) 
409 ;    In  re  Goodenough,  19  Wis.  274. 

8  3  Bonnett  v.  Bonnett,  61  Iowa,  199,  16  N.  W.  91,  47  Am.  Rep.  810;  Chapsky 
v.  Wood,  26  Kan.  650,  40  Am.  Rep.  321, 

«*  Ante,  p.  242. 

«B  Post,  p.  476. 

66  As  to  the  emancipation  of  children,  see  post,  p.  280. 

67  1  Bl.  Comm.  453 ;  Benson  v.  Remington,  2  Mass.  113 ;  Plummer  v.  Webb, 
4  Mason,  380,  Fed.  Cas.  No.  11,233;    Galligan  v.  Woonsocket  St.  Ry.  Co.,  27 


§    127)  RIGHT   TO    child's    SERVICES   AND    EARNINGS.  277 

be  based  on  the  parent's  duty  to  support  the  child,'®  but  the  right  is 
recognized  even  in  those  jurisdictions  where  it  is  denied  that  there 
is  any  legal  duty  to  support.  Whatever  may  be  the  foundation  of 
this  right  of  the  parent,  its  existence  is  well  settled.  There  is  some 
authority  to  the  effect  that  the  right  to  a  child's  services  and  earn- 
ings does  not  vest  in  the  mother,  even  when  the  father  has  deserted 
her  and  the  child,  or  is  dead;  that  the  mother,  even  under  such  cir- 
cumstances as  these,  is  entitled  only  to  reverence  and  respect,  and  has 
no  authority  over  the  child,  or  right  to  its  services.'"  This,  however, 
is  a  mistake,  due  perhaps,  to  some  extent,  to  following,  without  rea- 
son or  other  authority,  the  dictum  of  Blackstone  and  other  old  writers 
and  judges  to  that  effect,  and  to  a  failure  to  recognize  the  fact  that 
there  is  no  longer  any  such  principle  or  doctrine  as  the  old  feudal  doc- 
trine, "which,  requiring,  as  it  did,  the  abject  subjection  and  servitude 
of  the  wife,  was  unable  to  recognize  the  supremacy  of  the  mother."  ^"^ 
By  the  overwhelming  weight  of  modern  authority,  a  widowed  mother 
is  entitled  to  the  services  and  earnings  of  a  minor  child  to  the  same 


R.  I.  363.  62  All.  376 ;  Gale  v.  Parrot,  1  N.  H.  28 ;  Lord  v.  Poor,  23  Me.  569 ; 
Magee  v.  Magee,  65  111.  255;  Shute  v.  Dorr,  5  Wend.  (N.  Y.)  204;  Allen  v. 
Allen,  60  Mich.  635,  27  N.  W.  702.  And  see  the  cases  cited  in  the  following 
notes.  If  a  minor,  with  his  parent's  consent,  enlists  in  the  army  or  navy, 
the  parent's  right  of  control  is  suspended,  and  all  pay,  bounties,  and  prize 
moneys  belong  to  the  minor,  and  not  to  the  parent.  Haliiday  v.  Miller,  29 
W.  Va.  424,  1  S.  E.  821,  6  Am.  St.  Rep.  653 ;  Gapen  v.  Gapen,  41  W.  Va.  422, 
23  S.  E.  579;  Taylor  v.  Bank,  97  Mass.  345;  Banks  v.  Gonant,  14  Allen 
(Mass.)  497;  Magee  v.  Magee,  65  111.  255;  Cadwell  v.  Sherman,  45  111.  348; 
Baker  v.  Baker,  41  Vt.  35;  Mears  v.  Bickford,  55  Me.  528.  Contra,  Bundy 
V.  Dodson,  28  Ind.  295;   Ginn  v.  Ginn,  38  Ind.  526. 

•  8  2  Kent,  Comm.  193 ;  Jenness  v.  Emerson,  15  N.  H.  488.  In  Canovar 
V.  Cooper,  3  Barb.  (N.  Y.)  117,  it  was  said  by  Strong,  P.  J.:  "The  reason 
why  parents  are  entitled  to  the  services  of  their  minor  children,  usually 
given,  is  that  which  I  have  already  mentioned — the  liability  to  support  them. 
But,  In  my  opinion,  a  much  stronger  reason,  and  one  more  consonant  with 
the  feelings  and  obligations  of  parent  and  child,  is  that  it  gives  the  parent 
the  control  over  the  actions  of  his  children,  when  they  are  incapable  of 
judging  for  themselves,  and  thus  has  a  tendency  to  save  them  from  the  effects 
of  idleness  or  imprudence." 

6  9  Pray  V.  Gorham,  31  Me.  240;  Com.  v.  Murray,  4  Bin.  (Pa.)  487,  5  Am. 
Dec.  412;  Fairmount  &  A.  St.  Pass.  Ry.  Co.  v.  Stutler,  54  Pa.  375,  93  Am. 
Dec.  714. 

7  0  Hammond  v.  Corbett,  50  N.  H.  501,  9  Am.  Rep.  288. 


278  RIGHTS  OF   PARENTS  AND  OF  CHILDREN.  (Ch.  10 

extent  as  the  father  would  be  if  Hving.'^^  The  same  rule  applies  where 
a  wife  is  deserted  by  her  husband,  or  he  is  imprisoned,  and  she  is  left 
to  maintain  her  children,  for  the  same  reasons  for  the  rule  apply  in 
both  cases.''^ 

Since  a  parent  is  thus  entitled  to  the  earnings  of  his  minor  child, 
it  follows  that  where  he  has  not  expressly  or  impliedly  emancipated 
the  child,  or  consented  to  its  receiving  and  enjoying  its  own  earnings, 
as  hereafter  explained, '^^  he  may  maintain  an  action  for  the  child's 
wages  against  one  who  has  employed  the  child,  and  the  action  is  prop- 
erly brought  in  the  parent's  name  alone.''*  It  has  been  held  that  the 
right  to  the  child's  services  is  personal  to  the  parent,  like  the  right 
of  custody,  and  cannot  be  assigned  to  another,  as  by  binding  the  child 
out  at  service.''"  But  there  are  other  decisions  in  favor  of  allowing  a 
parent  to  assign  his  child's  services  for  a  consideration  to  inure  to  him- 
self.^« 

In  the  absence  of  emancipation,  express  or  implied,  a  child  cannot 
make  any  contract  with  another  to  serve  him  which  will  be  binding 
on  the  father;  nor  can  he  give  a  valid  discharge  for  his  wages.  One 
who,  under  such  circumstances,  pays  a  minor  for  services,  or  for  in- 
juries resulting  in  loss  of  service,  does  so  at  his  peril;  and,  if  the  fath- 
er has  not  relinquished  his  right  to  such  services,  the  payment  will  be 


Ti  Hammond  v.  Corbett,  50  N.  H.  501,  9  Am.  Rep.  288;  Matthewson  v.  Perry, 
37  Ck)nn.  435,  9  Am.  Rep.  339;  Scamell  v.  St.  Louis  Transit  Ck).,  Iu3  Mo.  App. 
504,  77  S.  W.  1021;  Niglitingale  v.  Withington,  15  Mass.  272,  8  Am.  Dec.  101; 
Horgan  v.  Pacific  Mills,  158  Mass.  402,  33  N.  E.  581,  35  Am.  St.  Rep.  504; 
Kennedy  v.  New  York  Cent.  &  H.  R.  R.  Co.,  35  Hun  (N.  Y.)  186;  Gray  v.  Dur- 
land,  50  Barb.  (N.  Y.)  100;  Ballard  v.  Advertiser  Co.,  52  Vt.  325;  HoUings- 
worth  V.  Swedenborg,  49  Ind.  378,  19  Am.  Rep.  687 ;  State  v.  Baltimore  &  O. 
R.  Co.,  24  I\Id.  84,  87  Am.  Dec.  600 ;  Cain  v.  Devitt,  8  Iowa,  116 ;  Dufield  v. 
Cross,  12  111.  397;  Snediker  v.  Everingham,  27  N.  J.  Law,  143;  Campbell  v. 
Campbell,  11  N.  J.  Eq.  272;    post,  p.  296. 

7  2  See  Wodell  v.  Coggeshall,  2  Mete.  (Mass.)  89,  35  Am.  Dec.  391;  Chilson 
V.  Philips,  1  Vt  41;  Winslow  v.  State,  92  Ala.  78,  9  South.  728;  Savannah, 
F.  &  W.  Ry.  Co.  V.  Smith,  93  Ga.  742,  21  S.  E.  157. 

7  3  Post,  p.  280. 

7  4  Shute  V.  Dorr,  5  Wend.  (N.  Y.)  204;  Dufield  v.  Cross,  12  111.  397;  Hol- 
lingsworth  v.  Swedenborg,  49  Ind.  378,  19  Am.  Rep.  687 ;  Monaghan  v.  School 
Dist.  38  Wis.  100. 

7  5  Musgrove  v.  Kornegay,  52  N.  C.  71  (collecting  cases) ;  U.  S.  v.  Bain- 
bridge,  1  Mason,  71,  Fed.  Cas.  No.  14,497. 

76  Day  V.  Everett,  7  Mass.  145;  State  v.  Barrett,  45  N.  H.  15;  Johnson  v. 
Bicknell,  23  Me.  154;    Ford  v.  McVay,  55  111.  119. 


§    127)  RIGHT   TO   child's   SERVICES   AND    EARNINGS.  279 

no  defense  in  an  action  by  the  father.''^  The  same  principle  applies 
where  an  apprentice  is  employed  without  his  master's  consent.^®  The 
father,  where  his  child  is  employed  without  his  consent,  may  ratify 
the  contract  made  with  the  child,  and  recover  under  it;  or  he  may 
repudiate  it,  and  recover  the  value  of  the  services.^® 

Since  the  earnings  of  a  minor  unemancipated  child  belong  to  the 
father,  they  may  be  reached  by  the  father's  creditors,  and  subjected 
to  the  payment  of  their  claims,  just  like  any  other  property.^"  And 
the  same  is  true  of  property  purchased  with  the  child's  earnings.  It 
was  held  in  a  late  Texas  case,  for  instance,  that  land  bought  by  a 
mother  with  the  wages  given  her  by  her  son,  who  was  not  emanci- 
pated, was  subject  to  the  claims  of  the  father's  creditors.*^ 

When  a  child  is  emancipated — that  is,  when  he  is  released  from 
parental  control,  either  by  the  consent  of  the  parent  or  by  operation 
of  law,  including  cases  in  which  he  is  deserted — the  parent's  right  to 
the  child's  services  and  earnings  ceases,  and  with  it,  of  course,  all 
rights,  duties,  and  liabilities  which  are  dependent  upon  its  existence 
also  cease.^^ 


7  7  White  V.  Henry,  24  Me.  531;  Weeks  v.  Ilolmes,  12  Cush.  (Mass.)  215; 
Horgan  v.  Pacific  Mills,  158  Mass.  402,  33  N.  E.  581,  35  Am.  St  Rep.  504; 
Sherlock  v.  Kimmell,  75  Mo.  77;  Dunn  v.  Altman,  50  Mo.  App.  231.  But  see 
Ping  Min.  &  Mill.  Ck).  v.  Grant,  68  Kan,  732,  75  Pac.  1044,  construing  the  Kan- 
sas statute  (Gen.  St.  1901,  §  4185). 

78  James  v.  Leroy,  6  Johns.  (N.  Y.)  274;  Bowes  v.  Tibbets,  7  Me.  457;  Mun- 
sey  V.  Goodwin,  3  N.  H.  272. 

7  8  Sherlock  v.  Kimmell,  75  Mo.  77. 

80  Atwood  V.  Holcomb,  39  Conn.  270,  12  Am.  Rep.  386;  Harper  v.  Utsey 
(Tex.  Civ.  App.)  97  S.  W.  508 ;  Beaver  v.  Bare,  104  Pa.  58,  49  Am.  Rep  567 ; 
Dick  V.  Grissom,  Freem.  Ch.  (Miss.)  428 ;  Doe  v.  Reid,  53  N.  C.  377 ;  Schuster 
V.  Bauman  Jewelry  Co.,  79  Tex.  179,  15  S.  W.  259.  23  Am.  St.  Rep.  327. 

81  Schuster  v.  Bauman  Jewelry  Co.,  79  Tex.  179,  15  S.  W.  259,  23  Am.  St 
Rep.  327. 

82  Post,  p.  280.  Winslow  v.  State,  92  Ala,  78,  9  South.  728;  Southern  Ry 
Co.  V.  Flemister,  120  Ga.  524,  48  S.  E.  100. 


280  RIGHTS  OF   PARENTS  AND   OF   CHILDREN.  (Ch.  10 


EMANCIPATION   OF   CHILDREN. 

128.  A  child  may  be  released  from  parental  control,  and  become  en- 

titled to  his  earnings,  in  Tvhich  event  he  is  said  to  be  eman- 
cipated. 

129.  Emancipation  may  be  effected 

(a)  By  the  consent  of  the  parent,  evidenced  by  'written  or  oral  agree- 

ment, or  gathered  from  the  circumstances. 

(b)  By   operation   of  law — 

(1)  'Where   the   parent   abandons   or   fails   to   support  the   child. 

(2)  Where   the    child    contracts    a   valid   marriage,    either   vrith 

or    without    the    parent's    consent. 

(3)  Where  the  child  attains  his  majority,  which  is  at  21  years, 

or,  in  some  jurisdictions,  in  the  case  of  females,   IS  years. 

(c)  A  parent  w^ho,  by  his   conduct,  leads  an  employer  of  a  child  to 

believe  that  the  child  has  a  right  to  his  earnings,  and  to  pay 
the  child,  is  concluded  by  the  payment,  on  the  equitable  prin- 
ciple of  estoppel. 

130.  The    emancipation,    if    without    consideration,    may    be    revoked 

before  it  is  acted  upon  by  the  child,  but  not  afterwards.  If 
supported  by  a  valuable  consideration,  or,  at  common  law^, 
if  it  is  under  seal,  it  cannot  be  revoked. 

131.  Emancipation,  as  regards  future  services  and  earnings,  is  valid 

as  against  creditors  of  the  parent. 

A  child  may  be  released  from  parental  control,  and  become  entitled 
to  his  earnings,  or,  in  other  words,  he  may  become  emancipated,  either 
by  the  consent  of  his  parent,  or  by  operation  of  law  without  such  con- 
sent. The  effect  of  emancipation  is  to  deprive  the  parent  of  all  pow- 
er of  control  over  the  child,  so  long  as  the  emancipation  continues. 
The  child  becomes  entitled  to  his  time  and  his  earnings,  and  to  prop- 
erty purchased  with  his  earnings,  free  from  any  claims  of  his  parent, 
or  of  his  parent's  creditors,^ ^  and,  on  his  death,  his  earnings  pass  to 
his  administrator.** 

ssAtwood  V.  Holcomb,  39  Conn.  270,  12  Am.  Rep.  386;  Shute  v.  Dorr,  5 
Wex\a.  (N.  Y.)  204;  Burlingame  v.  Burlingame,  7  Cow.  (N.  Y.)  92;  Kain  v 
Larkin,  131  N.  Y.  300,  30  N.  E.  105 ;  Torreus  v.  Campbell,  74  Pa.  470 ;  Beaver 
V.  Bare,  104  Pa.  58,  49  Am.  Kep.  567;  Partridge  v.  Arnold,  73  111.  600;  Snedi- 
ker  V.  Everiugham,  27  N.  J.  Law,  143;  Trapnell  v.  Conklyu,  37  W.  Va.  242, 
16  S.  E.  570,  38  Am.  St.  Rep.  30;  Gale  v.  Parrot,  1  N.  H.  28;  Hall  v.  Hall,  44 
N.  H.  293;    Jenney  v.  Alden,  12  Mass.  375;    Nightingale  v.  Withingtou,   15 

8  4  Smith  V.  Knowlton,  11  N.  H.  I'Jl ;  Dierker  v.  Hess,  54  Mo.  246. 


§§    128-131)  EMANCIPATION    OF   CHILDREN.  281 

Not  on)y  may  a  parent  emancipate  his  child,  so  as  to  entitle  it  to 
receive  its  earnings  from  third  persons,  but  "emancipation  may  be 
implied  even  when  the  minor  resides  at  home  and  works  for  his  father, 
from  a  promise  on  the  part  of  the  father  to  pay  him  for  his  services 
during  his  minority,  so  that  the  minor  may  maintain  an  action  against 
the  father  even  for  such  services."  *"  Because  of  the  relation,  the 
presumption  is  against  any  such  contract,  and  the  child  must  show 
affirmatively  that  there  was  an  understanding  that  compensation  should 
be  paid. 

How  Emancipation  may  he  Effected — By  Consent  of  Parent. 

Emancipation  may  be  effected  by  the  consent  of  the  parent,  or  it 
may  be  effected  by  operation  of  law  without  his  consent.  The  clear- 
est case  of  emancipation  by  consent  is  where  the  child  can  show  an  ex- 
press written  or  oral  agreement  with  the  parent.*®  Here  there  can  be 
no  difficulty.  Emancipation  by  consent  may  also,  like  any  other  agree- 
ment, be  implied  as  a  matter  of  fact  from  the  conduct  of  the  parties.*^ 
No  particular  act  or  ceremony  is  necessary  to  constitute  emancipation. 
It  may  be  established  by  direct  evidence,  or  implied  from  circum- 
stances ;  and  it  may,  as  has  already  been  seen,**  be  implied  as  well 
when  the  child  continues  to  reside  at  home  as  when  he  lives  elsewhere. 
Like  any  other  fact,  its  existence  or  nonexistence  is  to  be  determined 
by  all  the  circumstances  of  the  particular  case.*" 

Mass.  272,  8  Am.  Dee.  101 ;   Whiting  v.  Earle,  3  Pick.  (Mass.)  201,  15  Am.  Dec. 

207;  Morse  y.  Welton,  6  Conn.  547,  16  Am.  Dec.  73;  Chase  v.  Elkins,  2  Vt 
290;  Varney  v.  Young,  11  Vt  258;  Tlllotson  v.  McCrUlis,  Id.  477;  Wilson  v. 
McMillan,  62  Ga.  16,  35  Am.  Rep.  115 ;  Wambold  v.  Vick,  50  Wis.  456,  7  N. 
W.  438. 

85Wood,  Mast.  &  Serv.  §  25;  Wilson  v.  McMillan,  62  Ga.  16,  35  Am.  Rep. 
115;  Hall  v.  Hall,  44  N.  H.  293;  Beaver  v.  Bare,  104  Pa.  58,  49  Am.  Rep.  567; 
McCloskey  v.  Cyphert,  27  Pa.  220;  Steel  v.  Steel,  12  Pa.  64;  Dierker  v.  Hess, 
54  Mo.  246 ;  Donegan  v.  Davis,  66  Ala.  362 ;  Sword  v.  Keith,  31  Mich.  247 ; 
Sammon  v.  Wood,  107  Mich.  506,  65  N.  W.  529. 

8  8  Bristor  v.  Chicago  &  N.  W\  Ry.  Co.,  128  Iowa,  479,  104  N.  W.  487. 

87  Hall  v.  Hall,  44  N.  H.  293 ;  Atwood  v.  Holcomb,  39  Conn.  270,  12  Am. 
Rep.  386 ;  Chase  v.  Smith,  5  Vt.  556;  Kain  v.  Larkin,  131  N.  Y.  300,  30  N.  E. 
105.  An  oral  agreement,  of  course,  may  be  unenforceable,  because  within  the 
statute  of  frauds.     Shute  v.  Dorr,  5  Wend,  (N.  Y.)  204. 

88  Supra,  note,  85. 

89  Canovar  v.  Cooper,  3  Barb.  (N.  Y.)  115;  Shute  v.  Dorr,  5  Wend.  (N.  Y.) 
204;  Whiting  v.  Earle,  3  Pick.  (Mass.)  201,  15  Am.  Dec.  207;  Inhabitants  of 
Dennysville  v.  Inhabitants  of  Trescott,  30  Me.  470 ;  Inhabitants  of  West  Gar- 
diner v.  Inhabitants  of  Manchester,  72  Me.  509 ;   Penn  v.  Whitehead,  17  Grat. 


282  RIGHTS  OP  PARENTS  AND  OF  CHILDREN.  (Ch.  10 

Same — By  Operation  of  Law. 

Emancipation  may  also  be  effected  by  operation  of  law,  and  even 
against  the  will  of  the  parent.  It  is  so  effected  by  the  valid  marriage 
of  the  child.®**  So,  where  a  child  reaches  his  majority,  the  parent's 
rights  over  him,  and  to  his  services  and  earnings,  cease,  and  the  child 
is  emancipated  by  operation  of  law.*^  At  common  law,  the  age  of 
majority  is  21  years  for  both  sexes,  but,  by  statute,  in  some  jurisdic- 
tions a  female  reaches  her  majority  at  18. 

It  is  said  that  emancipation  will  be  inferred  from  the  wrongful  con- 
duct of  a  parent  indicating  a  renunciation  of  the  parental  relation,  as 
when  he  abandons  or  forces  his  child  to  leave  him,  or  neglects  to  sup- 
port him,  so  that  it  is  necessary  for  the  child  to  support  himself.  It 
is  better,  however,  to  class  emancipation  thus  effected  as  emancipation 
by  operation  of  law;  for  willingness  of  the  parent,  under  such  circum- 
stances, is  altogether  immaterial.  The  law  emancipates  the  child.  A 
parent  is  only  entitled  to  the  services  and  earnings  of  his  child  while 
the  child  is  supported  by  him.  "Although  the  general  principle  is 
clear  and  unquestioned  that  the  father  is  entitled  to  the  services  of  his 
minor  child,  and  to  all  that  such  child  earns  by  his  labor,  yet  it  seems 
to  be  equally  clear  that,  as  the  right  of  the  father  to  the  services  of  the 
child  is  founded  upon  his  duty  to  support  and  maintain  his  child,  if 
he  should  fail,  neglect,  or  refuse  to  observe  and  perform  this  duty, 
his  right  to  the  services  of  his  child  should  cease  to  exist;  and  such 
we  hold  to  be  the  law."  ®^     It  has  therefore  been  held  that,  where  a 

(Va.)  503,  M  Am.  Dec.  478 ;  Johnson  v.  Silsbee,  49  N.  H.  543 ;  Beaver  v.  Bare, 
104  Pa.  5S,  49  Am.  Rep.  567 ;  Donegan  v.  Davis,  6G  Ala.  362 ;  Haugh  Ketcbam 
&  Co.  Iron  Works  v.  Duncan,  2  Ind.  App.  264,  28  N.  E.  334;  Everett  v.  Sher- 
fey,  1  Iowa,  357;   Schoenberg  v.  Voigt,  36  Mich.  310. 

»o  Aldrich  v.  Bennett,  63  N.  H.  415,  56  Am.  Rep.  529;  Vanatta  v.  Carr,  229 
111.  47,  82  N.  E.  267;  Dick  v.  Grissom,  Freem.  Ch.  (Miss.)  428;  Town  of  North- 
field  v.  Town  of  Brookfield,  50  Vt.  62 ;  Inhabitants  of  Taunton  v.  Inhabitants 
of  Plymouth,  15  Mass.  203 ;  Com.  v.  Graham,  157  Mass.  73,  31  N.  E.  706,  16 
L.  R.  A.  578,  34  Am.  St.  Rep.  255;  Town  of  Craftsbury  t.  Town  of  Greens- 
boro, 66  Vt.  585,  29  Atl.  1024.  The  fact  that  the  marriage  is  against  the  par- 
ent's will  can  make  no  difference,  if  the  marriage  is  valid.  Aldrich  v.  Bennett, 
supra ;  Com.  v.  Graham,  supra.  But  see  White  v.  Henry,  24  Me.  531.  As  to 
the  validity  of  such  marriages,  see  ante.  p.  20. 

81  Town  of  Poultney  v.  Town  of  Glover,  23  Vt  328;  Brown  v.  Ramsay,  29 
N.  J.  Law,  117;    Mercer  v.  Jackson,  54  111.  397. 

9a  Farrell  v.  Farrell,  3  Houst.  (Uel.)  633.  And  see  Hollingsworth  v.  Sweden- 
borg,  49  Ind.  378,  19  Am.  Rep.  687;  Inhabitants  of  Wells  v.  Inhabitants  of 
Kennebunk,  8  Greenl.  (Me.)  200. 


§§    128-131)  EMANCIPATION    OF   CHILDREN.  283 

widow  marries  again,  she  cannot  recover  the  wages  due  her  daugh- 
ter by  her  first  husband,  who  does  not  Hve  with  her,  and  is  not  sup- 
ported by  her."^  And  the  rule  is  well  settled  "that  if  the  father  aban- 
dons the  child,  and  leaves  him  to  provide  for  himself,  the  child  be- 
comes entitled  to  his  earnings  as  a  means  of  support,  and  the  father 
has  no  claim  upon  them."  ^*  "As  the  father  may  forfeit  his  right  to 
the  custody  and  control  of  his  child's  person  by  abusing  his  power, 
so,  by  neglecting  to  fulfill  the  obligations  of  a  father,  he  may  forfeit 
his  right  to  the  fruit  of  his  child's  labor.  If  he  provides  no  home  for 
his  protection,  if  he  neither  feeds  nor  clothes  him,  nor  ministers  to 
his  wants  in  sickness  or  health,  it  would  be  a  most  harsh  and  unnatural 
law  which  authorized  the  father  to  appropriate  to  himself  all  the  child's 
earnings.  It  would  be  recognizing  in  fathers  something  like  that  pre- 
eminent and  sovereign  authority  which  has  never  been  admitted  by 
the  jurisprudence  of  any  civilized  people,  except  that  of  ancient  Rome, 
whose  law  held  children  to  be  the  property  of  the  father,  and  placed 
them,  in  relation  to  him,  in  the  category  of  things  instead  of  that  of 
persons."  *'' 

Same — Estoppel  of  Parent. 

If  a  parent,  by  his  conduct,  leads  others  to  reasonably  believe  that 
he  has  emancipated  his  child,  and  such  others  act  upon  this  belief,  the 
parent  will  be  estopped  to  deny  emancipation  to  their  prejudice,  though 
there  has  been  no  emancipation  either  in  fact  or  in  law.  If,  for  in- 
stance, a  child  makes  a  contract,  on  his  own  account,  to  serve  another, 
and  the  father  knows  of  it,  and  makes  no  objection,  the  other  party 
to  the  contract  may  safely  pay  the  child  his  earnings,  and  the  pay- 

»3Hollingsworth  v.  Swedenborg,  49  Ind.  378,  19  Am.  Rep.  687.  And  see  In- 
habitants of  St.  George  v.  Inhabitants  of  Deer  Isle,  3  Greenl.  (Me.)  390. 

94  Atwood  V.  Holcomb,  39  Conn.  270,  12  Am.  Rep.  386.  See,  also,  Smith  v. 
Gilbert,  80  Ark.  525,  98  S.  W.  115,  8  L.  R.  A.  (N.  S.)  1098;  Swift  &  Co.  v. 
Johnson,  138  Fed.  867,  71  C.  O.  A.  619,  1  L.  R.  A.  (N.  S.)  1161;  Wodell  v. 
Coggeshall,  2  Mete.  (Mass.)  89,  35  Am.  Dec.  391 ;  Chilson  v.  Philips,  1  Vt.  41 ; 
Cloud  V.  Hamilton,  11  Hvmaph.  (Tenn.)  104,  53  Am.  Dec.  778;  Nightingale  v. 
Withington,  1^  Mass.  275,  8  Am.  Dec.  101 ;  Ream  v.  Watkins,  27  Mo.  516,  72 
Am.  Dec.  283;  Canovar  v.  Cooper,  3  Barb.  (N.  Y.)  115;  The  Etna,  1  Ware, 
474,  Fed.  Cas.  No.  4,542;  Stansbury  v.  Bertron,  7  Watts  &  S.  (Pa.)  362;  Mc- 
Carthy V.  Railroad  Corp.,  148  Mass.  550,  20  N.  E.  182,  2  L.  R.  A.  608 ;  Liberty 
V.  Palermo,  79  Me.  473,  10  Atl.  455;  Brown  v.  Ramsay,  29  N.  J.  Law,  117; 
Loy  V.  Loy,  128  Ind.  150,  27  N.  E.  351 ;  Clay  v.  Shirley,  65  N.  H.  644,  23  Atl. 
521. 

»6  The  Etna,  1  Ware,  474,  Fed.  Cas.  No.  4,542. 


284  EIGHTS  OF  PARENTS  AND   OF   CHILDREN.  (Ch.  10 

ment  will  bar  a  claim  to  such  earnings  by  the  father.''  There  is  no 
necessity  to  ask  whether  there  has  been  an  emancipation  in  fact.'^  It 
is  sufficient  to  apply  the  equitable  principle  that  "where  one  volunta- 
rily, by  his  words  or  conduct,  causes  another  to  believe  the  existence 
of  a  certain  state  of  things,  and  induces  him  to  act  on  that  belief,  so 
as  to  alter  his  own  previous  position  for  the  worse,  the  former  is  con- 
cluded from  averring  against  the  latter  a  different  state  of  things  as 
existing  at  the  same  time."  ®*  Such  conduct  does  not  necessarily  con- 
clude the  parent  as  against  the  child,  nor  would  it  prevent  him,  in  the 
absence  of  an  emancipation  in  fact,  from  claiming  the  wages  before 
payment,  and  thereby  rendering  the  employer  liable  to  him."'  Ac- 
quiescence by  the  father,  however,  in  the  child's  contracting  on  his 
own  account,  and  receiving  and  using  his  wages,  would  be  evidence 
from  which  a  jury  might  infer  emancipation  in  fact.* 

Consideration — Revocation. 

The  relinquishment  by  a  parent  of  his  right  to  the  services  and 
earnings  of  his  child  is  valid  as  a  gift,  and,  as  between  the  parties, 
it  requires  no  consideration.  When  a  child  performs  labor  for  his 
parent,  under  an  agreement  that  he  shall  be  compensated  therefor  by 
the  parent,  or  performs  labor  for  another  under  an  agreement  with 
the  parent  that  he  (the  child)  shall  own  what  he  receives,  the  parent 
will  be  bound  by  the  agreement,  though  there  is  no  consideration  for 
the  relinquishment  of  his  rights.*  "The  cases  referred  to  establish  the 
doctrine  that  it  (the  right  to  the  child's  services)  may  be  transferred 
to  the  minor.    It  is  to  be  regarded  as  being  in  the  nature  of  property, 

86  WLiting  V.  Earle,  3  Pick.  (Mass.)  201,  15  Am.  Dec.  207;   Vance  v.  Calbonn, 
77  Ark.  33,  90  S.  W.  619,  113  Am.  St.  Rep.  Ill ;   Culberson  v.  Alabama  Const. 
Co.,  127  Ga.  599,  56  S.  E.  765,  9  L.  R.  A.  (N.  S.)  411 ;    Merrill  v.  Hussey,  101 
Me.  439,  64  Atl.  819;    McMoVrow  v.  Dowell,  116  Mo.  App.  289,  90  S.  W.  728 
Atkins  V.  Sherbino,  58  Vt.  248,  4  Atl.  703;    Nixon  v.  Spencer,  16  Iowa,  214 
Armstrong  v.  McDonald,  10  Barb.  (N.  Y.)  300 ;    Smith  v.  Smith,  30  Conn.  Ill 
Schoouover  v.  Sparrow,  38  Minn.  393,  37  N.  W.  949. 

9  7  Atkins  V,  Sherbino,  58  Vt.  248,  4  Atl.  703. 

88  Fetter,  Eq.  45. 

98  Atkins  V.  Sherbino,  58  Vt.  248,  4  Atl.  703. 

1  Lackman  v.  Wood,  25  Cal.  147;    Scott  v.  White,  71  111.  287. 

2  Fort  V.  Gooding,  9  Barb.  (N.  Y.)  371;  Stanley  v.  Bank,  115  N.  T.  122,  22 
N.  E.  29 ;  Atwood  v.  Holcomb,  39  Conn.  270,  12  Am.  Rep.  386 ;  Chase  v.  Smith, 
5  Vt.  55G;  Abbott  v.  Converse,  4  Allen  (Mass.)  530;  Shute  v.  Dorr,  5  Wend. 
(N.  Y.)  204 ;  Gale  v.  Parrot,  1  N.  H.  28 ;  Morse  v.  Welton,  6  Conn.  647,  18 
Am.  Dec.  73;   Snediker  v.  Everingham,  27  N.  J.  Law,  143. 


§§    128-131)  EMANCIPATION    OF   CHILDREN.  285 

and,  as  a  minor  may  hold  other  property  independently  of  his  fa- 
ther, there  seems  to  be  no  valid  reason  why  he  may  not  thus  hold  the 
right  to  his  own  time  and  earnings.  *  *  *  As  it  may  be  held  by 
gift  or  license,  there  is  no  reason  why  the  gift,  when  accepted,  should 
be  any  more  revocable,  without  the  consent  of  the  donee,  than  other 
gifts."  « 

If  the  emancipation  is  without  consideration,  however,  it  may  be 
revoked  at  any  time  before  it  is  acted  upon,  and  from  the  time  of 
revocation  the  parent  is  restored  to  his  original  rights.*  It  is  a  mere 
gift  or  license,  and,  like  any  other  gift  or  license,  it  may  be  revoked  at 
any  time  before  it  is  accepted,  and  acceptance  is  acting  upon  it.  "A 
gift  is  not  binding  on  the  donor  until  accepted ;  and  the  acceptance  of 
a  gift  of  this  character  must  be  by  acting  upon  it.  Until  it  is  acted 
upon,  it  must,  from  the  nature  of  the  case,  be  revocable."  ° 

If, the  relinquishment  of  his  rights  by  the  parent  is  supported  by 
a  valuable  consideration,  or.  at  common  law  at  least,  if  his  agreement 
is  under  seal,  he  cannot  revoke.  "As  he  [the  minor]  may  hold  it  [his 
time  and  right  to  earnings]  by  a  contract  with  his  father  under  seal, 
or  for  a  valuable  consideration,  there  is  no  more  reason  for  holding 
that  the  father  may  revoke  this  contract  at  his  pleasure  than  any  other 
contract.  On  principle,  he  should  be  as  fully  bound  by  it  as  by  a  con- 
veyance of  land  or  other  property  to  his  child."  • 

Rights  of  Parent's  Creditors. 

The  emancipation  of  a  child,  and  relinquishment  by  the  parent  of 
his  right  to  the  future  services  and  earnings  of  the  child,  is  perfectly 
valid  as  against  the  parent's  creditors,  even  though  the  parent  may  be 
insolvent,  and  even  though  the  intention  is  to  prevent  the  creditors 
from  enforcing  their  claims  against  such  earnings,  or  property  pur- 
chased with  them.''    And  this  is  true  though  the  child  remains  at  home, 


«  Abbott  V.  CoDverse,  4  Allen  (Mass.)  530. 

*  Abbott  V.  Converse,  4  Allen  (Mass.)  530 ;  Dickinson  v.  Talmage,  138 
Mass.  249;  Everett  v.  Sherfey,  1  Iowa,  356;  Soldanels  v.  Railway  Co.,  23  Mo. 
App.  516;  Clark  v.  Fitch,  2  Wend  (N,  Y.)  459,  20  Am.  Dec.  639;  Chase  v. 
Elkins,  2  Vt  290 ;   Stovall  v.  Johnson,  17  Ala.  19. 

5  Abbott  v.  Converse,  4  Allen  (Mass.)  5SU. 

•  Abbott  V.  Converse,  4  Allen  (Mass.)  530. 

7  Wilson  v.  McMillan,  62  Ga.  16,  35  Am.  Rep.  115 ;  Atwood  v.  Holcomb,  39 
Conn.  270,  12  Am.  Rep.  386;  Manchester  v.  Smith,  12  Pick.  (Mass.)  113; 
Wambold  v.  Vick,  50  Wis.  456,  7  N.  W.  438;  Lord  v.  Poor,  23  Me.  569;  Trap- 
nell  v.  Ctonklyn,  37  W.  Va.  242,  16  S.  E.  570,  38  Am,  St.  Rep.  30;    McCloskey 


286  RIGHTS   OF   PARENTS  AND   OF   CHILDREN.  (Ch.  10 

and  is  hired  by  the  parent.*  As  was  said  by  the  North  Carolina  court: 
"A  creditor  cannot  make  his  debtor  work  in  order  to  pay  the  debt, 
nor  can  he  force  him  to  make  his  children  work,  or  sell  under  execu- 
tion the  valuable  interest  which  a  father  has  in  the  services  of  the 
child."  ®  And,  as  was  said  by  the  Pennsylvania  court,  a  father  "is 
not  bound  to  work  his  son  or  daughter  as  he  would  work  a  horse  or 
slave  for  the  benefit  of  his  creditors."  ^^  If,  however,  such  an  ar- 
rangement is  merely  colorable,  and  the  parent  is  in  fact  still  to  have 
the  benefit  of  the  wages,  the  transaction  is  fraudulent  and  void  as 
against  creditors.^ ^  And,  where  the  wages  are  already  earned,  the 
gift  of  them  would  be  subject  to  the  general  rules  governing  voluntary 
conveyances/^ 


ACTION  BY  PARENT  FOR  INJURIES  TO   CHILD. 

132.  Wlien  a  child,  is  injured  by  the  xtrrongful  act  or  omission  of  a 

person,  the  father,  or  any  other  person  standing  in  loco  pa- 
rentis, may  maintain  an  action  against  the  i^rongdoer  to  re- 
cover for  the  resulting  loss  of  service  and  incidental  expend- 
itures. 

133.  The   rules    as   to   the   necessity   of   showing   the   relationship    of 

master  and  servant  between  the  parent  and  child  to  entitle 
the  parent  to  sue  may  be  thus  stated: 
(a)  To  recover  for  loss  of  service,  the  right  to  the  child's  services, 
and  therefore  the  relationship  of  master  and  servant,  actual 
or  constructive,  must  be  shown.  The  relationship  exists  con- 
structively if  there  is  a  right  to  service.     Therefore — 

(1)  If  the  child  is  a  minor,  living  at  home,  service  is  presumed. 

(2)  Temporary    absence    of   the   child    from   home    will  not  pre- 

vent a  recovery,  if  the  parent  has  a  right  to  its  services. 


V.  Cyphert,  27  Pa.  220 ;  Partridge  v.  Arnold,  73  111.  600 ;  Winchester  v.  Reid. 
53  N.  C.  379 ;  Johnson  v.  Silsbee,  49  N.  H.  543 ;  Chase  v.  Elkins,  2  Vt  290 ; 
Bray  v.  Wheeler,  29  Vt  534;  Lackman  v  Wood,  25  Cal.  147;  Dierker  v. 
Hess,  54  Mo.  250 ;    Furrh  v.  McKnight,  6  Tex.  Civ.  App.  583,  20  S.  W.  95. 

«  Wilson  V.  McMillan,  62  Ga.  10,  35  Am.  Kep.  115;   Dierker  v.  Hess,  54  Mo. 
250;   Hall  v.  Hall,  44  N.  H.  293. 

9  Winchester  v.  Reid,  53  N.  C.  379. 

10  McCloskey  v.  Cyphert,  27  Pa.  220. 

11  Atwood  V.  Holcomb,  39  Conn.  270,  12  Am.  Rep.  38G ;    Wilson  v.  McMillan. 
62  Ga.  10,  35  Am.  Rep.  115. 

12  Beaver  v.  Bare,  104  Pa.  58,  49  Am.  Rep.  507;    Winchester  v.  Reid,  53  N. 
C.  379 ;  Dick  v.  Grissom,  Freem.  Ch.  (Miss.)  428. 


§§    132-134)  ACTION    FOR    INJURIES   TO    CHILD.  287 

(3)  By  the  weight  of  authority  in  this  country,  but  not  in  Eng- 

land, the  parent  may  recover  if  he  has  not  relinquished 
his  right  to  reclaim  the  child's  services  at  any  time,  though 
the  child,  at  the  time  of  the  injury,  may  be  in  the  actual 
service  of  another,  even  with  the  parent's  consent,  and 
even  though  the  child  does  not  intend  to  return. 

(4)  If  the  parent  has  relinquished  his  right  to  the  child's  serv- 

ices, he  cannot  recover  on  the  theory  of  loss  of  service. 
(b)  On  the  theory  that  loss  of  service  at  the  time  of  action  is  the 
gist  of  the  action  by  a  parent  for  an  injury  to  his  child,  it 
is  held  in  England  that  there  can  be  no  recovery  at  all  ivhere 
there  has  been  no  loss  of  service,  as  ■where  the  child  is  too 
young  to  render  any  service.  But,  by  the  weight  of  au- 
thority in  this  country,  there  may  be  a  recovery  for  incidental 
expenses  in  caring  for  the  child,  and  there  may  be  a  recovery 
for  prospective  loss  of  services,  hov^ever  young  the  child 
may   be. 

134.  At  common  law,  an  action  w^ould  not  lie  for  an  injury  result- 
ing in  the  immediate  death  of  the  child;  but  a  right  of  ac- 
tion in  such  a  cause  is  very  generally  given  by  statute. 

Where  a  child  is  injured  by  the  wrongful  conduct  of  another,  and 
the  injury  results  in  direct  and  proximate  damage  to  the  parent,  the 
tort  gives  rise  to  two  causes  of  action — one  in  the  parent,  and  one  in 
the  child.  The  two  causes  of  action  are  separate  and  distinct.  The 
child  cannot  sue  for  the  damage  to  the  parent,  nor  can  the  parent  sue 
for  the  damage  to  the  child.  Each  must  sue  for  his  own  damage,  and 
neither  action  is  a  bar  to  the  other.^^ 

Where  the  wrong  results  in  damage  to  the  child  only,  no  action 
can  be  maintained  by  the  parent.  A  father  cannot  maintain  an  action 
for  the  wrongful  exclusion  of  his  child  from  school,  for  the  child  alone 
is  damaged.^*  Where  a  child  is  injured  by  an  assault  and  battery,  the 
child  alone  can  sue  for  the  personal  injury,  including  the  physical  and 
mental  suffering,  and  the  expense,  if  any,  incurred  by  him;  for  this 
damage  is  to  him,  and  not  to  the  parent.^'*    As  will  be  seen  in  a  sub- 


is  Wilton  V.  Railroad  Co.,  125  Mass.  130;  Karr  v.  Parks,  44  Cal.  4G ;  Slaugh- 
ter V.  Nashville,  C.  &  St.  L.  Ry.  Co.,  90  S.  W.  243,  28  Ky.  Law  Rep.  GG5,  re- 
hearing denied  91  S.  W.  713. 

14  Boyd  V.  Blaisdell,  15  Ind.  73;  SoiTels  v.  Matthews,  129  Ga.  319,  58  S.  E. 
810,  13  L.  R.  A.  (N.  S.)  357;    Donahoe  v.  Richards,  38  Me.  376. 

isOowden  v.  Wright,  24  Wend.  (N.  Y.)  429,  35  Am.  Dec.  633;  Rogers  v. 
Smith,  17  Ind.  323,  79  Am.  Dec.  483;   Wilton  v.  Railroad  Co.,  125  Mass.  130. 


288  RIGHTS  OF   PARENTS  AND   OF   CHILDREN.  (Cll.  10 

sequent  section,  the  same  is  true  where  a  daughter  is  seduced  or  de- 
bauched. Her  father  cannot  maintain  an  action  therefor  at  common 
law,  unless  he  is  specially  damaged.  For  the  mere  seduction,  the  ac- 
tion, if  it  can  be  maintained  at  all,  must  be  brought  by  the  daughter.^' 
And  so  it  is  in  other  cases;  a  parent  cannot  in  any  case  maintain  an 
action  for  an  injury  to  his  child  alone,  unless  he  brings  the  action  in 
the  name  of  the  child. ^^ 

If,  however,  a  wrong  results  in  a  direct  injury  to  the  parent,  as 
distinguished  from  the  injury  to  the  child,  the  parent  ought  to  have 
a  right  of  action. 

Loss  of  Services  of  Child. 

Since  a  parent  having  the  care  and  custody  of  his  child  has  a  right 
to  his  services  and  earnings,  any  wrongful  act  or  omission  of  a  person, 
the  direct  result  of  which  is  to  cause  him  to  lose  such  services  tempo- 
rarily or  permanently,  is  an  injury  to  him,  as  distinguished  from  the 
injury  to  the  child;  and  the  authorities  are  therefore  agreed  that,  if 
he  has  sustained  such  a  loss,  he  may  maintain  an  action  therefor.  And 
in  such  an  action  he  may  recover,  not  only  for  the  loss  up  to  the  time 
the  action  is  brought,  but  also,  since  he  can  recover  but  once  for  the 
wrong,  for  any  loss  of  service  during  the  child's  minority  which,  in 
the  judgment  of  the  jury,  and  according  to  the  evidence,  will  be  sus- 
tained in  the  future.^*  This  is  true  of  any  injury  to  a  child  resulting 
directly  in  loss  of  services  to  the  parent.    It  is  true  of  an  assault  and 

18  Post,  p.  299. 

17  Sorrels  v.  Matthews,  129  Ga.  319,  58  S.  E.  819,  13  L.  R.  A.  (N.  S.)  357; 
Kirk  V.  Middlebrook,  201  Mo.  245,  100  S.  W.  450 ;  Pattison  v.  Gulf  Bag  Ck).,  116 
La.  963,  41  South.  224,  114  Am.  St.  Rep.  570 ;  Teunessee  Cent.  Ry.  Co.  v.  Doak, 
115  Tenn.  720,  92  S.  W.  853.  But  see  Nyman  v.  Lynde,  93  Minn.  257,  101  N. 
W.  163,  following  Gardner  v.  Kellogg,  23  Minn.  463,  and  holding  that  under 
Rev.  Laws  1905,  §  4060,  the  father  may  maintain  an  action  for  injuries  to  his 
minor  child ;  the  action  being  for  the  benefit  of,  and  a  bar  to  an  independent 
action  by,  the  child. 

18  Russell  V.  Corne,  2  Ld.  Raym.  1032;  Wilton  v.  Railroad  Co.,  125  Mass. 
130 ;  Cowden  v.  Wright,  24  Wend.  (N.  Y.)  429,  35  Am.  Dec.  633 ;  Dollard  v. 
Roberts,  130  N.  Y.  269,  29  N.  B.  104,  14  L.  R.  A.  238;  Rogers  v.  Smith,  17 
Ind.  323,  79  Am.  Dec.  483;  Dufiold  v.  Cross,  12  111.  397;  Kerr  v.  Forgue,  54 
111.  482,  5  Am.  Rep.  140;  Magee  v.  Holland,  27  N.  J.  Law,  86,  72  Am.  Dec.  341 ; 
Shields  v.  Yonge,  15  Ga.  349,  60  Am.  Dec.  698 ;  Kennard  v.  Burton,  25  Me.  39, 
43  Am.  Dec.  249 ;  Klingman  v.  Holmes,  54  Mo.  304 ;  H.  &  G.  N.  R.  Co.  v.  Mil- 
ler, 49  Tex.  322. 


§§   132-134)  ACTION   FOR  INJURIES   TO   CHILD.  289 

battery/'  of  negligence  resulting  in  personal  injuries,^"  of  malicious 
prosecution  or  false  imprisonment,^^  and  of  injuries  inflicted  by  vicious 
animals  negligently  permitted  to  run  at  large. ^^  As  will  be  seen  more 
at  length  in  subsequent  sections,  it  is  also  true  of  the  seduction  or  de- 
bauching of  a  daughter,^^  and  of  the  abduction,  enticing  away,  or  har- 
boring of  a  child. ^* 

Expenses  Incurred  by  Reason  of  the  Wrong. 

If  a  parent  is  put  to  extra  expense  in  the  support  and  maintenance 
of  his  children,  by  reason  of  the  tortious  conduct  of  another,  consti- 
tuting an  interference  with  his  legal  rights  as  parent,  he  should  be  al- 
lowed to  recover  for  such  expense  from  the  wrongdoer.  Thus,  in 
case  of  an  assault  and  battery  committed  upon  his  child,  or  any  other 
tortious  conduct  towards  the  child,  resulting  in  personal  injuries,  the 
parent  should  recover  for  the  medical  or  other  expenses  incurred  in 
curing  and  caring  for  him.  His  right  to  recover  such  damages  is  con- 
ceded by  all  the  authorities  where  the  relation  of  master  and  servant 
exists,  actually  or  constructively,  and  the  injury  also  results  in  a  loss 
of  the  child's  services.^''  This  rule  not  only  applies  to  expenses  in 
curing  personal  injuries,  but,  as  will  be  seen,  it  also  applies  to  medical 
and  other  expenses  in  caring  for  a  daughter  who  has  been  seduced  or 
debauched,^®  and  to  exoenses  in  regaining  the  custody  of  an  abduct- 
ed child.2^ 


i»Cowden  v.  Wright,  24  Wend.  (N.  Y.)  429,  35  Am.  Dec.  633;  Klingman  v. 
Holmes,  54  Mo.  304 ;  Hoover  v.  Heim,  7  Watts  (Fa.)  62 ;  Trimble  v.  Spiller, 
7  T.  B.  Mon.  (Ky.)  394,  IS  Am.  Dec.  189. 

2  0  Kennard  v.  Burton,  25  Ale.  39,  43  Am.  Dec.  249;  Shields  v.  Yonge,  15  Ga. 
349,  60  Am.  Dec.  698 ;  Wilton  v.  Railroad  Co.,  125  Mass.  130 ;  H.  &  G.  N.  R. 
Co.  V.  Miller,  49  Tex.  322. 

21  Rogers  v.  Smith,  17  Ind.  323,  79  Am.  Dec.  483. 

»a  Durden  v.  Barnett,  7  Ala,  109;   Karr  v.  Parks,  44  Cal.  46. 

2  3  Post,  p.  299. 

24  Post,  p.  304. 

25  Russell  V.  Corne,  2  Ld.  Raym.  1032;  Wilton  v.  Railroad  Co.,  125  Mass. 
130;  Rogers  v.  Smith,  17  Ind.  323,  79  Am.  Dec.  483;  Magee  v.  Holland,  27 
N.  J.  Law,  80,  72  Am.  Dec.  341 ;  Klingman  v.  Holmes,  54  Mo.  304 ;  Cuming  v. 
Railway  Co.,  109  N.  Y.  95,  16  N.  E.  65.  See,  also,  Tennessee  Cent.  Ry.  Co.  v. 
Doak,  115  Term.  720,  92  S.  W.  853.  But  see  Fagan  v.  Interurban  St.  Ry.  Co. 
(Sup.)  85  N.  Y.  Supp.  340,  holding  that,  in  an  action  for  personal  injuries  to 
plaintiff's  son,  there  could  be  no  recovery  for  expenses  alleged  to  have  been 
incurred  for  the  board,  lodging,  and  nursing  of  the  son,  where  such  expenses 
were  not  paid  by  plaintiff,  nor  their  reasonable  value  shown. 

2  0  Post,  p.  299.  «T  Post,  p.  304. 

TIFF.P.&  D.Rel.(2d  Ed.)— 19 


290  RIGHTS  OP  PARENTS  AND   OF  CHILDREN.  (Ch.  10 

Whether  or  not  a  parent  can  recover  for  expenses  in  caring  for 
and  curing  an  injured  child,  independently  of  any  loss  of  services,  is 
a  question  upon  which  the  authorities  are  conflicting.^* 

Necessity  to  Show  Loss  of  Service. 

It  is  clear,  of  course,  that  there  can  be  no  recovery  as  for  loss  of 
services,  unless  a  loss  of  service  can  be  shown.  Therefore,  where  the 
damages  sought  to  be  recovered  in  any  particular  case  are  for  the 
loss  of  services  of  the  child,  it  must  appear  that  the  relationship  of 
master  and  servant,  actual  or  constructive,  exists  between  the  plain- 
tiff and  the  child.^"  If  the  child  has  been  wholly  emancipated  by  the 
parent,  so  that  he  is  not  entitled  to  his  services,  there  can  be  no  re- 
covery on  the  theory  of  a  loss  of  service.^**  Nor,  it  seems  clear,  can 
there  be  any  recovery  on  such  a  theory  by  a  parent  who,  by  desertion 
and  nonsupport,  has  forfeited  all  right  to  his  child's  services,  or  im- 
pliedly emancipated  him.^^ 

If  a  minor  child  has  not  been  emancipated,  and  the  parent,  by  his 
conduct,  has  not  lost  the  right  to  his  services,  the  relationship  of  mas- 
ter and  servant  will  be  presumed,  and  no  proof  of  acts  of  service  is 
necessary.  It  is  the  right  to  the  child's  service,  and  not  actual  per- 
formance of  services,  that  determines  the  right  to  recover.^^    The  mere 

2  8  Post,  p.  293. 

2  9  Martin  v.  Payne,  9  Johns.  (N.  Y.)  387,  6  Am.  Dec.  288.  And  see  Eickhoff 
V.  Sedalia,  W.  &  S.  W.  Ry.  Co.,  lOG  Mo.  App.  541,  80  S.  W.  96G,  upholding  the 
right  of  a  stepfather  to  sue.  See,  also,  Palmer  v.  Baum,  123  111.  App.  584, 
where  it  was  held  that  a  father  may  recover  for  loss  of  services  of  an  adult 
daughter  who  though  married  was  separated  from  her  husband  and  a  member 
of  such  father's  family. 

30  McCarthy  v.  Railroad  Corp.,  148  Mass.  550,  20  N.  E.  182,  2  L.  R.  A,  G08; 
Pecos  &  N.  T.  Ry.  Co.  v.  Blasengame,  42  Tex.  Civ.  App.  66,  93  S.  W.  187. 
Emancipation  of  a  minor  child  is  a  question  of  fact.  If  the  parent  continues 
to  exercise  authority,  and  the  child  to  submit  to  it,  the  relation  of  master 
and  servant  continues.  Sutton  v.  Huffman,  32  N.  J.  Law,  58 ;  Hudkius  v. 
Haskins,  22  W.  Va.  645. 

31  Southern  Ry.  Co.  v.  Flemister,  120  Ga.  524,  48  S.  E.  160;  Wodell  v. 
Coggeshall,  2  Mete.  (:\Iass.)  89,  35  Am.  Dec.  391.  As  to  what  constitutes  eman- 
cipation, express  and  Implied,  see  ante,  p.  280 

32  Jag.  Torts,  452;  Evans  v.  Walton,  L.  R.  2  C.  P.  615;  Maunrier  v.  Venn, 
Moody  &  M.  323 ;  ISIanvell  v.  Thomson,  2  Car.  &  P.  303 ;  Terry  v.  Hutchinson, 
L.  R.  3  Q.  B.  599 ;  Herring  v.  Jester,  2  Houst.  (Del.)  66 ;  Parker  v.  Meek,  3 
Sneed  (Tenn.)  29;  Emery  v.  Gowen,  4  Greenl.  (Me.)  33,  16  Am.  Dec.  233; 
Mercer  v.  Walmsley,  5  Har.  &  J.  (Md.)  27,  9  Am.  Dec.  480 ;  Kennedy  v.  Shea, 
110  Mass.  147,  14  Am.  Rep.  584;  Martin  v.  Payne,  9  Johns.  (N.  Y.)  387,  6  Am. 
Dec.  288;  Bartley  v.  Richtmyer,  4  N.  Y.  39,  53  Am.  Dec.  338;  Boyd  v.  Byrd, 
8  Blackf .  (Ind.)  113,  44  Am.  Dec.  740 ;   Mulvehall  v.  Millward,  11  N.  Y.  343. 


§§    132-134)  ACTION    FOR   INJURIES   TO    CHILD.  291 

temporary  absence  of  a  child  from  home,  therefore,  at  the  time  of  his 
injury,  will  not  defeat  a  recovery  by  the  parent,  if  the  parent  has  a 
right  to  his  services. ^^ 

In  England  it  is  held  that  there  is  no  right  of  action  in  the  par- 
ent, on  the  theory  of  loss  of  service,  where  the  child  has  left  home, 
and  is  in  the  service  of  another,  at  the  time  of  the  injury;  and  that 
it  can  make  no  difl'erence  that  the  parent  has  not  bound  the  child  out, 
and  can  reclaim  his  services  at  any  time,  or  even  that  the  child's  de- 
parture is  against  the  parent's  will.^*  In  this  country  the  rule  is  dif- 
ferent in  most  states,  if  not  in  all.  It  is  held  that,  if  the  parent  has 
not  emancipated  the  child  or  otherwise  forfeited  the  right  to  his  serv- 
ices, he  may  at  any  time  compel  the  child  to  return  and  serve  him; 
and  the  child,  therefore,  is  still  constructively,  in  the  parent's  service.^' 
The  American  doctrine  necessarily  results  from  the  principle  that  it 
is  the  right  to  a  minor  child's  services,  and  not  present  acts  of  service, 
at  the  time  of  the  injury,  that  determines  the  right  to  recover.*®    The 


33  Martin  v.  Payne,  9  Johns.  (N.  Y.)  387,  6  Am.  Dec.  288;  Boyd  v.  Byrd,  8 
Blackf.  (Ind.)  113,  44  Am.  Dec.  740. 

34  Dean  v.  Peel,  5  East,  45 ;  Davies  v.  Williams,  10  Q.  B.  725 ;  Hedges  v. 
Tagg,  L,  R.  7  Exch.  283;  Blaymire  v.  Haley,  6  Mees.  &  W.  55;  Thompson 
V.  Ross,  5  Hurl.  &  N.  16. 

86  Martin  v.  Payne,  9  Johns.  (N.  Y.)  387,  6  Am.  Dec.  288;  Mulvehall  v. 
Millward,  11  N.  Y.  343;  Clark  v.  Fitch,  2  Wend.  (N.  Y.)  459,  20  Am.  Dec. 
639;  Kennedy  v.  Shea,  110  Mass.  147,  14  Am.  Rep.  584;  Emery  v.  Gowen, 
4  Greenl.  (Me.)  33,  16  Am.  Dee.  233;  Ellington  v.  Ellington  47  Miss.  329; 
White  V.  Murtland,  71  111.  250,  22  Am.  Rep.  100;  Hornketh  v.  Barr,  8  Serg. 
&  R.  (Pa.)  36,  11  Am.  Dec.  568;  Logan  v.  Murray,  6  Serg.  &  R.  (Pa.)  175,  9 
Am.  Dec.  422 ;  Mohry  v.  Hoffman,  86  Pa.  358";  Boyd  v.  BjTd,  8  Blackf.  (Ind.) 
113,  44  Am.  Dec.  740;  Bolton  v.  Miller,  6  Ind.  266;  Mercer  v.  Walmsley,  5 
Har.  &  J.  (Md.)  27,  9  Am.  Dec.  486;  Greenwood  v.  Greenwood,  28  Md.  369, 
382;   Hudkins  v.  Haskins,  22  W,  Va.  645. 

36  In  Martin  v.  Payne,  9  Johns.  (N.  Y.)  387,  6  Am.  Dec.  288,  the  plain- 
tiff's daughter,  who  was  under  age,  went,  with  the  consent  of  her  father, 
to  live  with  her  uncle,  for  whom  she  worked  when  she  pleased,  and  he 
agreed  to  pay  her  for  her  work ;  but  there  was  no  agreement  that  she  should 
continue  to  live  in  his  house  for  any  fixed  time.  While  in  her  uncle's  house 
she  was  seduced  and  got  with  child.  Immediately  afterwards  she  returned 
to  her  father's  house,  where  she  was  maintained,  and  the  expense  of  her 
lying  in  was  paid  by  him.  It  was  held,  contrary  to  the  English  cases,  that 
the  father  could  maintain  an  action  against  the  seducer.  "In  the  present 
case,"  said  the  court,  "the  father  had  made  no  contract  binding  out  his 
daughter,  and  the  relation  of  master  and  servant  did  exist  from  the  legal 
control  he  had  over  her  services;  and,  although  she  had  no  intention  of  re- 
turning, that  did  not  terminate  the  relation,  because  her  volition  could  not 


292  RIGHTS   OF   PARENTS   AND   OF   CHILDREN.  (Ch.  10 

fact  that  the  child  has  no  intention  to  return  cannot  make  any  differ- 
ence, for  that  cannot  terminate  the  relationship  of  master  and  servant 
between  the  parent  and  the  child.  As  was  said  by  the  New  York  court, 
the  child's  volition  cannot  affect  the  parent's  rights. ^''^  This  ques- 
tion has  generally  arisen  in  actions  for  the  seduction  or  debauching  of 
a  daughter;  but  the  doctrine  is  general,  and  must  apply  just  as  well 
where  some  other  injury  to  a  child  is  complained  of.  If  the  child, 
at  the  time  of  the  injury,  is  bound  out  to  service  to  another,  the  rule 
is  dift'erent,  for  the  parent  then  has  no  right  to  the  child's  services.^® 
If  the  service  has  terminated,  however,  and  the  child  has  returned 
home,  or  is  on  his  way  home,  he  is  constructively  in  his  parent's  serv- 
ice, and,  if  injured  before  or  after  reaching  home,  the  parent  may  re- 
cover.^' 


affect  his  rights.  She  was  his  servant  de  jure,  though  not  de  facto,  at  the 
time  of  the  injury;  and,  being  his  servant  de  jure,  the  defendant  has  done 
an  act  which  has  deprived  the  father  of  the  daughter's  services,  and  which 
he  might  have  exacted  but  for  that  injury."  In  Claris  v.  Fitch,  2  Wend. 
(N.  Y.)  459,  20  Am.  Dec.  639,  it  was  proved  upon  the  trial  of  a  similar  ac- 
tion that  the  plaintiff  told  his  daughter  that  she  might  remain  at  home  or 
go  out  to  service,  as  she  pleased,  but,  if  she  left  his  house,  she  must  take 
care  of  herself,  and  he  relinquished  all  claim  to  her  wages  and  services. 
It  was  contended  that  there  was  a  distinction  between  this  case  and  that 
of  Martin  v.  Payne,  supra,  on  the  ground  that  he  had  given  her  her  time 
absolutely;  but  the  court  held  that  the  personal  rights  of  the  father  were 
not  relinquished,  and  that  he  could  recover;  and,  further,  that  it  made  no 
difference  that  he  had  been  put  to  no  expense.  And  in  Mulvehall  v.  Mill- 
ward,  11  N.  Y.  343,  it  appeared  that  the  plaintiffs  minor  daughter,  who  had 
left  his  house  to  work  for  the  defendant,  was  seduced  by  the  latter  while 
in  his  employ,  and  became  pregnant  She  thereafter  worked  at  other  places, 
and  did  not  return  to  her  father's  house ;  nor  did  it  appear  that  she  had 
any  intention  to  return  there  until  after  her  confinement  and  the  birth  of 
her  child.  It  was  not  shown  that  her  father  took  any  care  of  her,  or  ex- 
pended any  money  on  her  account,  during  her  pregnancy  or  sickness.  It 
was  held  that,  as  the  father  had  not  surrendered  his  right  to  her  services, 
he  could  maintain  an  action  for  her  seduction. 

3  7  Martin  v.  Payne,  9  Johns.  (N.  Y.)  389,  6  Am.  Dec.  2S8. 

38  Daln  V.  Wycoff,  7  N.  Y.  191;  Kennedy  v.  Shea,  110  Mass.  150,  14  Am. 
Rep.  584;  Ellington  v.  Ellington,  47  Miss.  329;  Bolton  v.  Miller,  6  Ind.  2G2. 
Even  in  England  however,  it  was  held  that  where  a  man  fraudulently  pro- 
cured a  girl  to  enter  his  service,  for  the  purpose  of  seducing  her,  and  car- 
ried out  his  purpose,  the  parent  might  sue  as  if  no  hiring  had  taken  place. 
Speight  v.  Oliviera,  2  Starkie,  493. 

3  9  Terry  v.  Hutchinson,  L.  R.  3  Q.  B.  599  (a  case  of  seduction  of  a  daugh- 
ter).   And  see  Emery  v.  Goweu,  4  Greenl.  (Me.)  33,  16  Am.  Dee.  233. 


§§    132-134)  ACTION    FOR   INJURIES   TO    CHILD.  293 

If  the  child  is  so  young  at  the  time  of  the  injury  that  it  is  incapa- 
ble of  performing  any  act  of  service,  and  it  is  cured  before  it  reaches 
an  age  at  which  it  can  perform  services,  it  is  clear  that  there  can  be 
no  recovery  as  for  mere  loss  of  service,  for  there  has  been  and  can 
be  no  loss  of  service,  as  the  result  of  the  injury.  In  Hall  v.  Holland- 
er *"  the  child  was  less  than  three  years  old  when  injured,  and  was 
cured  within  six  months.  The  declaration  sought  to  recover,  among 
other  damages,  for  loss  of  the  child's  services  during  that  time.  It 
was  very  properly  held  that  there  could  be  no  recovery  as  for  loss 
of  services.  In  England  the  cases  go  further  than  this,  and  hold  that, 
where  the  parent  sues  "per  quod  servitium  amisit,"  he  must  show  a 
loss  of  service  at  the  time  of  the  action,  and  cannot  maintain  an  action 
solely  for  prospective  loss  of  service.  And  it  is  therefore  held  that 
there  can  be  no  recovery  for  loss  of  services  where  the  child,  at  the 
time  of  the  action,  is  too  young  to  perform  any  act  of  service,  though 
the  injury  may  be  permanent,  and  it  may  be  clear  that  there  will  be  a 
loss  of  services  in  the  future.  There  are  decisions  and  dicta  in  this 
country  to  the  same  effect.*^  But,  in  most  states  where  the  question 
has  arisen,  the  doctrine  of  the  English  courts  is  repudiated,  and  it  is 
held  that  there  may  be  a  recovery  for  prospective  loss  of  services,  how- 
ever young  or  incapable  of  service  the  child  may  be  at  the  time  the  ac- 
tion is  brought.*^ 

Whether  or  not  a  parent  can  recover  for  expenses  incurred  in  car- 
ing for  his  child  independently  of  any  loss  of  service  is  a  question 
upon  which  the  authorities  are  conflicting.  In  Hall  v.  Hollander,*^ 
which  has  already  been  referred  to,  a  father  brought  an  action  for  per- 
sonal injury  to  his  son  by  driving  against  him.  The  declaration  al- 
leged that,  by  means  thereof,  the  son  was  sick  during  the  space  of 
six  months,  "during  all  which  time  the  plaintiff  lost  and  was  deprived 
of  the  service  of  his  said  son  and  servant,  and  was  also  thereby  forced 
and  obliged  to  pay,  lay  out,  and  expend  a  large  sum  of  money,  in  and 


*o7  Dowl.  &  R.  133. 

41  See  Whitaker  v.  Warren,  60  N.  H.  20,  49  Am.  Rep.  302;  Shields  v.  Yonge, 
15  Ga.  349,  356,  GO  Am.  Dec.  698;  Matthews  v.  Railway  Co.,  26  Mo.  App. 
75;  Dunn  v.  Railway  Ck).,  21  Mo.  App.  188. 

4-  Fiuley  v.  Railroad  Co.  (C.  C)  59  Fed,  419;  Clark  v.  Bayer,  32  Ohio  St. 
299,  30  Am.  Rep.  593;  Frick  v.  Railway  Co.,  75  Mo.  542;  Cuming  v.  Rail- 
road Co.,  109  N.  Y.  95,  16  N.  E.  65;  Xetherland-American  Steam  Nav.  Co. 
V.  Hollander,  59  Fed.  417,  8  C.  C.  A.  169. 

4  3  7  Dowl.  &  R.  133. 


294  RIGHTS  OP  PARENTS  AND  OF  CHILDREN.  (Ch.  10 

about  endeavoring  to  procure  his  said  son  and  servant  to  be  cured," 
etc.  At  the  trial  it  appeared  that  the  son  was  only  23/2  years  old,  and 
there  was  no  evidence  that  he  was  capable  of  performing  any  serv- 
ice for  his  father.  It  was  therefore  held  that  the  action  as  brought 
could  not  be  maintained.  This  case  has  often  been  cited  as  authority 
for  the  proposition  that  there  can  be  no  recovery  for  expenses  in- 
curred by  a  parent  in  caring  for  the  injured  child  in  the  absence  of 
the  actual  or  constructive  relation  of  master  and  servant,  and  loss 
of  services.  But  the  case  does  not  go  so  far.  The  declaration  ex- 
pressly based  the  right  to  recover  on  the  existence  of  the  relationship 
of  master  and  servant,  and  the  evidence  showed  that  the  child  was  too 
young  to  perform  any  act  of  service.  It  was  for  this  reason  that  the 
action  failed.  Bayley,  J.,  said  that  he  certainly  was  not  prepared  to 
say  "that  a  declaration  might  not  be  framed,  in  which  the  father  be- 
ing averred  to  be  under  an  obligation  to  maintain  the  child,  and  hav- 
ing no  means  of  obtaining  medical  assistance,  he  necessarily  incurred 
expense  in  and  about  his  cure,  so  as  to  entitle  him  to  recover."  The 
later  English  cases,  however,  hold  that  there  can  be  no  recovery  for 
such  expenses  unless  there  is  an  actual  or  constructive  relationship  of 
master  and  servant,  and,  therefore,  that  there  can  be  no  recovery  even 
for  medical  and  other  expenses  where  the  child  is  too  young  to  render 
services.**  There  are  cases  in  this  country  which  recognize  the  same 
doctrine.*" 

These  cases  which  deny  to  the  parent  any  remedy  for  medical  or 
other  expenses  incurred  in  consequence  of  the  injury  to  the  child,  ex- 
cept as  incident  to  the  loss  of  service,  ignore  the  parental  relation 
and  obligation  as  an  independent  ground  of  recovery,  although  it  is 
clear  that  the  parent  has  sustained  a  pecuniary  loss  as  the  proximate 
result  of  the  wrong.  In  this  country  the  prevailing  doctrine  is  the 
other  way,  and  in  favor  of  allowing  the  parent  to  recover  independent- 
ly of  any  question  as  to  loss  of  service.  "The  authorities  in  this  coun- 
try approve  a  more  liberal  and  a  more  reasonable  doctrine,  and,  bas- 
ing the  right  of  action  upon  the  parental  relation,  instead  of  master 
and  servant,  allow  the  father  to  recover  his  consequential  loss  irre- 


**  Grinuell  v.  Wells,  8  Scott,  N.  R.  741. 

40  Whitaker  v.  Warren,  60  N.  H.  20,  49  Am.  Rep.  302;  Shields  v.  Yonge, 
15  Ga.  349,  356,  60  Am.  Dec.  698;  Matthews  T.  Railway  Co.,  26  Mo.  App. 
75;    Dimn  v.  Railway  Co.,  21  Mo.  App.  188. 


§§    132-134)  ACTION    FOR   INJURIES   TO    CHILD.  295 

spective  of  the  age  of  the  minor."  *"  In  Dennis  v.  Clark,*^  which  is 
a  leading  case  holding  this  doctrine,  it  was  decided  after  careful  con- 
sideration, and  a  review  of  the  authorities,  that,  when  an  infant  re- 
siding with  his  father  receives  such  an  injury  as  would  give  the  child 
a  right  of  action,  the  father,  who  is  put  to  necessary  expense  in  the 
care  and  cure  of  the  child,  may  maintain  an  action  for  indemnity, 
though  the  child  may  be  too  young  to  render  any  service.  This  doc- 
trine casts  upon  the  wrongdoer  responsibility  for  a  pecuniary  loss 
flowing  proximately  from  his  wrongful  act,  if  actually  sustained  by 
the  parent  in  the  discharge  of  his  parental  obligation  to  care  for  and 
maintain  his  infant  children,  without  regard  to  any  consideration  of 
loss  of  service. 

It  has  been  held  in  a  late  case  in  New  York  that  the  parent  cannot 
recover  for  medical  and  surgical  expenses,  which,  according  to  the 
testimony  of  experts,  may  become  necessary  in  the  future,  though  the 
child  might  be  allowed  to  recover  therefor.** 

Other  Elements  of  Damage. 

As  will  presently  be  seen,  the  courts  have  made  a  distinction  as  re- 
gards the  measure  of  damages,  between  actions  by  a  parent  for  the 
seduction  or  debauching  of  his  daughter  and  actions  for  other  wrongs. 
In  the  former  they  not  only  allow  the  parent  to  recover  for  loss  of 
his  daughter's  services,  and  for  medical  and  other  expenses  incurred 
in  caring  for  her,  but  they  recognize,  as  the  real  gravamen  of  the  ac- 
tion, the  wounded  feelings  and  mortification  of  the  parent,  the  disgrace 
brought  upon  his  family  by  the  wrong,  and  the  corrupting  example  to 
the  other  children,  and  allow  the  jury  to  take  these  matters  into  con- 
sideration in  awarding  the  damages.*^  There  are  some  cases  in  which 
this  principle  has  been  applied  in  an  action  for  loss  of  service  from 
other  injuries  than  seduction.  It  has  been  held,  for  instance,  that  in 
an  action  per  quod  servitium  amisit,  brought  by  a  parent  for  an  as- 
sault and  battery  on  his  daughter,  the  jury,  in  assessing  the  damages, 
had  a  right  to  consider  the  injury  to  the  parent's  feelings,  and  to  the 

46  Finley  v.  Railroad  Qo.  (C.  O.)  59  Fed.  419;  Dennis  v.  Clarli,  2  Cnsli. 
(Mass.)  347,  48  Am.  Dec.  671;  Sylies  v.  Lawlor,  49  Cal.  236;  Durden  v.  Bar- 
nett,  7  Ala.  169;  Clark  v.  Bayer,  32  Ohio  St.  299,  30  Am.  Rep.  593;  Cuming 
V.  Railroad  Co.,  109  N.  Y.  95,  16  N.  E.  65;  Netherland- American  Steam  Nav. 
Co.  V.  Hollander,  59  Fed.  417,  8  C.  C  A.  169. 

4T  2  Cush.  (Mass.)  347,  48  Am.  Dec.  671. 

48  Cuming  v.  Railroad  Co.,  109  N.  Y.  95,  16  N.  E.  65. 

**  Post,  p.  301. 


296  RIGHTS   OF   PARENTS  AND   OF  CHILDREN.  (Ch.  10 

character  of  the  family.""  In  most  states  the  rule  is  otherwise,"  the 
recovery  of  such  damages  being  Hmited  to  actions  for  the  seduction  or 
debauching  of  a  daughter. 

Remote  and  Proximate  Cause. 

The  loss  of  service  or  expenses  incurred  by  the  parent  must  be  the 
proximate  result  of  the  wrongful  conduct  of  the  defendant,  or  he  can- 
not recover  therefor.  Thus,  as  will  be  seen  in  dealing  with  seduction, 
if  the  daughter  loses  her  health,  not  as  the  direct  result  of  the  seduc- 
tion, but  because  of  mental  suffering  caused  by  her  abandonment  by 
the  seducer,  shame  resulting  from  exposure,  or  other  similar  causes, 
and  her  loss  of  health  results  in  the  loss  of  her  services  to  her  father, 
or  in  expenses  to  him,  the  seduction  is  not  the  proximate  cause  of  the 
loss,  and  the  father  cannot  maintain  an  action  therefor.**^  The  same 
principle  applies  in  the  case  of  other  injuries. 

Adult  Children. 

A  parent  may  maintain  an  action  for  the  loss  of  the  services  of  an 
adult  child  if  the  relationship  of  master  and  servant  exists  between 
them.  In  such  a  case  the  relationship  will  not  be  implied,  as  in  the 
case  of  a  minor  child,  for  there  is  no  right  to  the  services  of  an  adult 
child  from  which  to  imply  service.  It  must  be  shown  that  the  relation- 
ship actually  exists.  The  question  has  generally  arisen  in  cases  of 
seduction  of  an  adult  daughter,  but  the  rule  applies  to  other  injuries 
also." 

Who  may  Sue. 

The  action  for  loss  of  services  caused  by  injury  to  a  child  is  not 
necessarily  always  in  the  father.  It  is  in  the  person  entitled  to  the 
services  of  the  child.  If  the  father  is  entitled,  then  the  action  must  be 
brought  by  him,  and  not  by  the  mother  or  any  other  person."    If  the 


BO  Trimble  v.  Spiller,  7  T.  B.  Mon.  (Ky.)  394,  18  Am.  Dec.  189.  And  see 
Klingmau  v.  Holmes,  54  Mo.  304;  Magee  v.  Holland,  27  N.  J.  Law,  86,  72 
Am.  Dec.  341. 

61  Cowden  v.  Wright,  24  Wend,  (N.  Y.)  429,  35  Am.  Dec.  633;  Whitney 
V.  Hitchcock,  4  Denio  (N.  Y.)  401. 

0  2  Post,  p.   SOL 

6  3  Mercer  v.  Jackson,  54  111.  397;  Palmer  v.  Baum,  123  111.  App.  584.  As 
to  seduction  of  daughter,  see  post,  p.  299. 

5  4  Vossel  V.  Cole,  10  Mo.  634,  47  Am.  Dec.  136;    Furman  v.  Van  Sise,  56 

N.  Y.  435,  15  Am.  Rep.  441;    Sargent  v.  ,  5  Cow.  (N.  Y.)  100;    Ryan 

V.  Fralick,  50  Mich.  483,  15  N.  W.  501;   Jag.  Torts,  453. 


§§    132-13J:)  ACTION    FOR   INJURIES   TO    CHILD.  297 

mother  is  entitled  to  the  child's  services,  either  because  of  the  father's 
death,  or  because  of  his  desertion,  leaving  the  child  for  her  to  sup- 
port, she  may  sue.^**  And  the  action  may  be  maintained  by  any  other 
person  who  stands  in  loco  parentis.^' 

Action  for  Death  of  Child. 

In  treating  of  husband  and  wife,  attention  was  called  to  the  rule, 
"Actio  personalis  moritur  cum  persona,"  and  it  was  shown  that,  by 
the  weight  of  authority,  it  was  applied  at  common  law  so  as  to  prevent 
an  action  by  one  spouse  for  a  wrongful  act  or  neglect  causing  the  death 
of  the  other."  It  was  seen  that  if,  by  the  tortious  conduct  of  another, 
a  wife  was  killed,  her  husband  could  not,  at  common  law,  recover  for 
the  loss  of  her  society  or  services.  It  was  also  seen  that  this  rule  has 
been  very  generally  changed  by  statute.  The  same  is  true  in  the  case 
of  parent  and  child,  where  the  child  is  killed  by  the  wrongful  act  or 
omission  of  another.  Though  there  were  some  cases  to  the  contrary, ^^ 
by  the  weight  of  authority,  at  common  law  the  parent  could  not  recov- 
er for  the  loss  of  the  child's  services,  nor  for  his  expenses  resulting 
from  the  wrong,   where   his  death   was   immediate.^*     Under   Lord 

6  6  Bedford  v.  McKowl,  3  Esp.  119;  Natchez,  J.  &  C.  R.  Co.  v.  Cook,  63 
Miss.  38;  Savannah,  F.  &  W.  Ry.  Co.  v.  Smith,  93  Ga.  742,  21  S.  E.  157; 
Harford  Co.  v.  Hamilton,  60  Md.  340,  45  Am.  Rep.  739;  Kennedy  v.  Rail- 
road C/O.,  35  Hun  (N.  Y.)  187;  Horgan  v.  Pacific  Mills,  158  Mass.  402,  33  N. 
E,  581,  35  Am.  St  Rep.  504;  Abrahams  v.  Kidney,  104  Mass.  222,  6  Am, 
Rep.  220;  Ellington  v.  Ellington,  47  Miss.  329;  Davidson  v.  Abbott,  52  Vt. 
570,  36  Am.  Rep.  7G7;  Gray  v.  Durland,  51  N.  Y.  424;  Keller  v.  Donnelly, 
5  Md.  211.    But  see  South  v.  Denniston,  2  Watts  (Pa.)  474.    See  post,  p.  303. 

6  6  Whitaker  v.  Warren,  60  N.  H.  20,  49  Am.  Rep.  302 ;  Clark  v.  Bayer,  32 
Ohio  St.  299,  30  Am.  Rep.  593;  Fernsler  v.  Moyer,  3  Watts  &  S.  (Pa.)  416, 
39  Am.  Dec.  33;  Irwin  v.  Dearman,  11  East,  23;  Blanchard  v.  Ilsley,  120 
Mass.  487,  21  Am.  Rep.  535;  Ingersoll  v.  Jones,  5  Barb.  (N.  Y.)  661;  Bart- 
ley  V.  Richtmyer,  4  N.  Y.  38,  53  Am.  Dec.  338;  Moritz  v.  Garnhart,  7  Watts 
(Pa.)  302,  32  Am.  Dec.  762;  Manvell  v.  Thomson,  2  Car.  &  P.  303;  David- 
son V.  Goodall,  18  N.  H.  423;  Keller  v.  Donnelly,  5  Md.  211;  Ball  v.  Bruce, 
21  111.  161;  Maguinay  v.  Saudek,  5  Sneed  (Tenn.)  146;  Jag.  Torts,  454,  and 
cases  there  collected.     See  post,  p.  303. 

5  7  Ante,  p.  79;  Tiff.  Death  Wrongf.  Act,  §§  1-18. 

6  8  Ford  V.  Monroe,  20  Wend.  (N.  Y.)  210  (since  overruled);  Plummer  v. 
Webb,  1  Ware,  69,  Fed.  Cas.  No.  11,234;  James  v.  Christy,  18  Mo.  162; 
Shields  v.  Yonge,  15  Ga.  319,  60  Am.  Dec.  698. 

5  9  0sborn  v.  Gillett,  L.  R.  8  Exch.  88  (Bramwell,  B.,  dissenting);  Skinner 
V.  Railroad  Corp.,  1  Cush.  (Mass.)  475,  48  Am.  Dec.  616;  Niekerson  v.  Har- 
riman,  38  Me.  277;  Covington  St.  Ry.  Co.  v.  Packer,  9  Bush  (Ky.)  455,  15 
Am.  Rep.  725;    Edgar  v.  Castello,  14  S.  C.  20,  37  Am.  Rep.  714;    Natchez, 


298  RIGHTS  OF  PARENTS  AND  OP  CHILDREN.  (Ch.  10 

Campbell's  act,*"  however,  and  the  similar  statutes  which  have  been 
enacted  in  this  country,  the  rule  is  different;  and,  wherever  a  child's 
death  is  caused  by  the  wrongful  act  or  omission  of  another,  his  parent, 
or  his  executor  or  administrator,  for  the  parent's  benefit,  may  recover 
damages  for  past  and  prospective  loss  of  the  child's  services.  And  it 
is  well  settled  in  this  country  that,  when  suit  is  brought  under  the  stat- 
ute, there  may  be  a  recovery  for  future  loss  of  services,  although  the 
child  was  of  such  tender  years  as  to  be  incapable  of  rendering  serv- 
ices."^ Even  under  the  statutes,  the  damages  are  for  loss  of  service, 
and  their  measure  is  the  value  of  the  services,  past  and  prospective, 
less  the  probable  cost  of  support  and  maintenance."^  Beyond  what 
the  law  will  imply  as  between  parent  and  child,  no  proof  of  service  in 
fact  is  necessary  in  suing  under  the  statute."' 

Furnishing  Intoxicating  Liquor  to  Child. 

Perhaps,  even  at  common  law,  a  parent  could  maintain  an  action 
against  a  person  for  selling  or  furnishing  his  minor  child  with  intoxi- 
cating liquors,  whereby  the  parent  sustains  damage.  At  any  rate,  in 
many  states  such  a  right  of  action  is  given  by  statute,  so  that  "where 
liquor  is  sold  to  a  minor,  whereby  he  becomes  intoxicated,  and  he 
thereafter  becomes  sick  in  consequence  thereof,  and  the  father  is  de- 
prived of  his  services  and  is  compelled  to  expend  money  for  medical 
attendance  upon  him,  the  father  may  maintain  an  action,  under  the 
civil  damage  law,  to  recover  the  damages  occasioned  thereby."  •* 

J.  &  C.  R.  Co.  V.  Cook,  63  Miss.  38;  Sherman  v.  Johnson,  58  Vt.  40,  2  Atl. 
707;  Jackson  v.  Railway  Co.,  140  Ind.  241.  39  N.  E.  663,  49  Am.  St.  Rep. 
192;    Tiff.  Death.  Wrongf,  Act,  §  11,  and  cases  there  cited. 

8  0  St.  9  &  10  Vict.  c.  93. 

61  Ihl  V.  Railway  Co.,  47  N.  Y.  317,  7  Am.  Rep.  450;  Oldfield  v.  Railroad 
Co.,  14  N.  Y.  310;    Foppiano  v.  Baker,  3  Mo.  App.  560. 

6  2  Kockford,  R.  I.  &  St  L.  R.  Co.  v.  Delaney,  82  111.  19S,  25  Am.  Rep. 
SOS;  Rajnowskl  v.  Railroad  Co.,  74  Mich.  20,  41  N.  W.  847;  Pennsylvania 
Co.  V.  Lilly,  73  Ind.  252;    Brunswig  v.  White,  70  Tex.  504,  8  S.  W.  85. 

63  Duckworth  v.  Johnson,  4  Hurl.  &  N.  653;  Condon  v.  Railway  Co.,  16 
Ir.  C.  L.  415;  Ihl  v.  Railway  Co.,  47  N.  Y.  317,  7  Am.  Rep.  450;  Little  Rock 
&  Ft  S.  Ry.  Co.  V.  Barker,  39  Ark.  491;  City  of  Chicago  v.  Major,  18  111. 
349,  68  Am.  Dec.  553. 

64  Black,  Intox.  Liq.  §  285.     See  Id.  §§  277-337. 


}§    135-137)        ACTION    FOR    SEDUCTION    OF   DAUGHTER.  299 


ACTION    BY    PARENT    FOR    SEDUCTION    OR    DEBAUCHING    OF 

DAUGHTER. 

135.  On  the   seduction  or  debancliing  of  his  dang^hter,  resnlting  ac- 

tually or  constructively  in  loss  of  service,  the  father,  or  any 
one  standing  in  loco  parentis,  has  a  right  of  action  against 
the  wrongdoer  for  the  loss  of  service  and  incidental  expenses. 

136.  In  snch  a  case  damages  may  also  be  given  for  all  that  the  parent 

may  suffer  from  the  ruin  of  his  daughter,  the  disgrace  to  his 
family,  and  the  corrupting  example  to  his  other  children. 

137.  The  same  rules  apply  here  as  in  the  case  of  other  injuries,  as 

to  the  necessity  to  show  that  the  daughter  xvas  in  the  actual 
or  constructive  service  of  the  plaintiff  at  the  time  of  the  in- 
jury. The  necessity  for  loss  of  service  has  been  dispensed 
xrith  by  statute  in  some  states. 

A  parent's  right  to  the  services  of  his  child  gives  him  a  right  of 
action  for  damages  arising  from  the  seduction  or  debauching  of  his 
daughter.®"^  At  common  law  the  daughter's  consent  to  the  inter- 
course prevented  her  from  maintaining  an  action  for  her  seduction ;  ®' 
but  her  consent  cannot  affect  her  parent's  rights,  and  is  therefore  no 
bar  to  his  action  for  the  loss  of  her  services  and  other  damages  to  him. 

From  the  earliest  period  the  courts  have  based  the  parent's  right  of 
action,  not  upon  the  seduction  or  debauching,  but  upon  the  loss  of  his 
daughter's  services.  The  action  cannot  be  maintained  for  the  mere  act 
of  intercourse,  though  it  is  a  far  greater  injury  to  the  father  than  any 
mere  pecuniary  loss  he  may  sustain.  In  Eager  v,  Grimwood  ^^  it  ap- 
peared that  the  defendant  had  debauched  the  plaintiff's  daughter,  but 
that  another,  and  not  he,  was  the  cause  of  her  pregnancy;  and  it  was 
therefore  held  that  the  plaintiff  could  not  recover. 

6  5  Bennett  v.  Allcott,  2  Term  R,  1G7;  Woodward  v.  Walton,  2  Bos.  &  I". 
(N.  R.)  476;  Blagge  v.  Ilsley,  127  Mass.  191,  34  Am.  Rep.  361;  Hubbell  v. 
Wheeler,  2  Aik.  (Vt.)  359;  Parker  v.  Meek,  3  Sneed  (Tenn.)  29;  Logan  v. 
Murray,  6  Serg.  &  R.  (Pa.)  175,  9  Am.  Dec.  422;  Ellington  v.  Ellington,  47 
Miss.  329;  Mercer  v,  Walmsley,  5  Har.  &  J.  (Md.)  27,  9  Am.  Dec.  486;  Sar- 
gent V.  ,  5  Cow.  (N.  Y.)  109;    Scarlett  v.  Norwood,  115  N.  C.  2M,  20 

S.  E.  459.  If  a  marriage  is  fraudulently  induced  by  a  man  who  already  has 
a  wife  living,  the  fraud  vitiates  the  parent's  consent,  and  an  action  may  be 
maintained  by  him.  Lawyer  v.  Fritcher,  130  N.  Y.  239,  29  N.  E.  267,  14 
L,  R.  A.  700,  27  Am.  St.  Rep.  521. 

06  Paul  V.  Frazier,  3  Mass.  71,  3  Am.  Dec.  95;  Woodward  v.  Anderson, 
9  Bush  (Ky.)  624;  Jordan  v.  Hovey,  72  Mo.  574,  37  Am.  Rep.  447;  Weaver 
V.  Ba chert.  2  Pa.  80,  44  Am.  Dec.  159.     Contra,  by  statute,  post,  p.  303.  • 

87  1  Exch.  61. 


300  RIGHTS   OP  PARENTS   AND   OF   CHILDREN.  (Ch.  10 

In  its  origin  the  action  was  very  technical.  If  the  wrongdoer  came 
upon  the  father's  premises  and  debauched  the  daughter  -there,  the 
parent  could  maintain  an  action  of  trespass  quare  clausum  fregit,  and 
lay  the  loss  of  service  and  other  damage  sustained  by  reason  of  the 
intercourse  as  consequential  upon  and  in  aggravation  of  the  trespass; 
or  he  could,  at  his  election,  bring  an  action  on  the  case,  ignoring  the 
trespass.  But  for  merely  debauching  a  man's  daughter,  unaccompa- 
nied by  an  unauthorized  entry  upon  his  premises,  the  action  had  to 
be  in  case.    And  such  is  still  the  rule  at  common  law.®^ 

When  the  action  is  for  loss  of  service,  there  can,  of  course,  be  no 
recovery,  unless  the  relationship  of  master  and  servant  actually  or 
constructively  exists.®^  And  the  cases  go  even  further,  and  hold  that 
no  action  at  all  can  be  maintained,  even  for  medical  and  other  expens- 
es incurred  in  caring  for  the  daughter,  unless  the  relationship  of  mas- 
ter and  servant  exists  either  in  fact  or  in  contemplation  of  law.''"  As 
has  been  seen,  however,  in  this  country,  where  a  minor  child  is  in- 
jured by  the  wrongful  conduct  of  another,  and  the  parent  incurs  ex- 
pense in  caring  for  and  curing  the  child,  many  courts  base  the  parent's 
right  of  action  for  indemnity  upon  the  parental  relation  and  obligation 
to  maintain  the  child,  instead  of  on  the  relation  of  master  and  servant, 
and  allow  a  recovery  irrespective  of  the  loss  of  service.''^  There  is  no 
good  reason  why  the  doctrine  of  these  cases  should  not  be  applied  to 
cases  in  which  the  wrong  is  the  debauching  of  a  daughter. 

It  is  not  necessary  in  this  action,  any  more  than  in  an  action  for 
other  injuries  to  a  child  to  show  the  actual  performance  of  services 
by  a  minor  child.'^^  It  is  sufficient  to  show  that  the  parent  has  a  right 
to  the  daughter's  services,  if  she  is  a  minor,  and  service  will  be  im- 
plied.^'    It  has  been  already  shown  in  a  preceding  section  when  the 

8  8  Mercer  v.  Walmsley,  5  Har.  &  J.  (Md.)  27,  9  Am.  Dec.  48G,  and  cases 
cited  in  note  65,  supra. 

68  Ante,  p.  200. 

7  0  Griuuell  v.  Wells,  7  Man.  &  G.  1033;  Harris  v.  Butler,  2  Mees.  &  W. 
539;  Abrahams  v.  Kidney,  104  Mass.  222,  6  Am.  Rep.  220;  Hartley  v.  Kicht- 
myer,  4  N.  Y.  38,  53  Am.  Dec.  338;  Coon  v.  Moffitt,  3  N.  J.  Law,  583,  4  Am. 
Dec.  392;  White  v.  Murtland,  71  111.  252,  22  Am.  Rep.  100;  Vessel  v.  Cole, 
10  Mo.  634,  47  Am.  Dec.  136;  Whitbourne  v.  Williams,  70  Law  J.  K.  B.  933, 
[1901]  2  K,  B.  722,  85  Law  T.  271. 

71  Ante,  p.  293. 

72  Snider  v.  Newell,  132  N.  C.  614,  44  S.  E.  354. 

73  Maunder  v.  Venn,  Moody  &  M.  323 ;  Manvell  v.  Thomson,  2  Car.  &  P. 
303;  Herring  v.  Jester,  2  Houst.  (Del.)  66;  Parker  v.  Meek,  3  Sneed  (Tenn.) 
29;   Emery  v.  Gowen,  4  Greenl.  (Me.)  33,  16  Am.  Dec.  233;   Mercer  v.  Walms- 


§§    135-137)        ACTION    FOR   SEDUCTION    OF   DAUGHTER.  301 

relationship  of  master  and  servant  is  deemed  to  exist  between  parent 
and  minor  child,  and  it  is  only  necessary  to  refer  to  what  was  there 
said.    The  rules  are  equally  applicable  here.''* 

The  courts  have  made  a  distinction,  as  regards  the  measure  of  dam- 
ages, between  actions  by  a  parent  for  the  seduction  or  debauching  of 
his  daughter  and  actions  for  other  wrongs.  The  fiction  of  loss  of  serv- 
ice is  generally  upheld  even  in  cases  of  seduction ;  but  the  courts  rec- 
ognize as  the  real  gravamen  of  the  action  the  wounded  feelings  and 
mortification  of  the  parent,  the  disgrace  brought  upon  his  family  by 
the  wrong,  and  the  corrupting  example  to  the  other  children,  and  al- 
low the  jury  to  take  these  matters  into  consideration  in  awarding  dam- 
ages.^* As  was  said  by  Lord  Eldon:  "In  point  of  form,  the  action 
only  purports  to  give  a  recompense  for  loss  of  service ;  but  we  cannot 
shut  our  eyes  to  the  fact  that  this  is  an  action  brought  by  a  parent  for 
an  injury  to  her  child.  In  such  case  I  am  of  opinion  that  the  jury 
may  take  into  their  consideration  all  that  she  can  feel  from  the  nature 
of  the  loss.  They  may  look  upon  her  as  a  parent  losing  the  comfort, 
as  well  as  the  service,  of  her  daughter,  in  whose  virtue  she  can  feel  no 
consolation,  and  as  the  parent  of  other  children,  whose  morals  may  be 
corrupted  by  her  example."  ''® 

As  stated  in  treating  generally  of  a  parent's  right  of  action  for  in- 
juries to  his  child,  the  loss  of  services  or  expenses  must  be  the  prox- 
imate result  of  the  defendant's  wrong,  or  the  parent  cannot  recover. 
The  principle  applies  to  actions  by  a  parent  for  the  seduction  or  de- 
ley,  5  Har.  &  J.  (Md.)  27,  9  Am.  Dec.  486;  Kennedy  v.  Shea,  110  Mass.  147, 
14  Am.  Rep.  584;  White  v.  Murtland,  71  111.  250,  22  Am.  Rep.  100;  lugwald- 
son  V.  Skrlvseth,  7  N.  D.  388,  75  N.  W.  772.  But  see  Taylor  v.  Daniel,  98  S. 
W.  986,  30  Ky.  Law  Rep.  377. 

74  Ante,  p.  291,  where  the  cases  on  seduction  as  well  as  on  other  injuries 
are  collected,  and  the  conflicts  shown. 

75  Blagge  V.  Ilsley,  127  Mass.  191,  34  Am,  Rep.  361;  Bedford  v.  McKowl, 
3  Esp.  119;  Irwin  v.  Dearman,  11  East,  23;  Barbour  v.  Stephenson  (C.  C.) 
32  Fed.  66;  Clem  v.  Holmes,  33  Grat,  (Va.)  722,  36  Am,  Rep.  793;  Rollins 
V,  Chalmers,  51  Vt.  592;  Garretson  v.  Becker,  52  111.  App.  255;  Russell  v. 
Chambers,  31  Minn.  54,  16  N.  W.  458;  Felkner  v.  Scarlet,  29  lud.  154;  Phe- 
lin  V,.  Keuderdine,  20  Pa.  354;  Hudkius  v.  Haskins,  22  W.  Va.  645;  Klopfer 
V.  Bromme,  26  Wis.  372;  Dain  v.  Wyckoff,  18  N.  Y,  45,  72  Am,  Dec,  493; 
Hatch  V,  Fuller,  131  Mass,  574;  Parker  v.  Monteith,  7  Or,  277;  Emery  v. 
Gowen,  4  Greenl,  (Me.)  33,  16  Am.  Dec.  233;  Cook  v.  Bartlett.  179  Mass.  576, 
61  N.  E,  266;  Mighell  v.  Stone,  175  111.  261,  51  N.  E.  900,  affirming  74  111. 
App.  129;    Middleton  v.  Nichols,  62  N.  J.  Law,  636,  43  Atl.  575. 

7  6  Bedford  v.  McKowl,  3  Esp,  U9. 


302  RIGHTS   OP   PARENTS  AND   OF   CHILDREN.  (Ch.  10 

baucliing  of  his  daughter.  If  the  daughter,  for  instance,  loses  her 
health,  not  as  the  direct  result  of  the  seduction,  but  because  of  mental 
suffering  caused  by  her  abandonment  by  the  seducer,  shame  result- 
ing from  exposure,  or  other  similar  causes,  and  her  ill  health  results 
in  the  loss  of  her  services  to  her  father,  or  in  medical  or  other  expens- 
es, the  loss  to  the  father  is  too  remote  a  consequence  of  the  seduction, 
and  he  cannot  maintain  an  action.''^  If,  however,  mental  distress  or 
disease  is  the  proximate  result  of  the  intercourse,  as  where  it  is  ac- 
complished under  circumstances  of  violence  or  fraud,  and  impairment 
of  health,  and  consequent  expense  or  loss  of  service  to  the  father  fol- 
low, the  father  may  maintain  an  action.  It  is  not  necessary  that  the 
intercourse  shall  have  resulted  in  pregnancy  or  sexual  disease.''*  Loss 
sustained  in  consequence  of  a  venereal  disease  caused  by  the  inter- 
course is  not  too  remote.''® 

A  parent  may  maintain  an  action  for  loss  of  the  services  of  an  adult 
child,  if  the  relationship  of  master  and  servant  exists  between  them. 
Under  such  circumstances  an  action  will  lie  for  seducing  or  debauch- 
ing an  adult  daughter,  and  thereby  causing  a  loss  of  services ;  and  the 
recovery  may,  as  in  the  case  of  a  minor  daughter,  include  damages  for 
wounded  feelings,  mortification,  etc.*"  In  the  case  of  an  adult  child, 
however,  the  relationship  of  master  and  servant  will  not  be  implied, 
as  in  the  case  of  a  minor  child,  but  it  must  be  shown  that  the  relation 
actually  existed.*^     Proof  of  any  actual  service,  however  slight,  has 


7  7  Boyle  V.  Brandon,  13  Mees.  &  W.  738;    Knight  v.  Wilcox,  14  N.  Y.  413. 

7  8  Abrahams  v.  Kidney,  104  Mass.  222,  6  Am.  Rep.  220;  Van  Horn  v.  Free- 
man, 6  N.  J.  Law,  322;  Manvell  v.  Tiiomson,  2  Car.  &  P.  303;  Blagge  v. 
Ilsley,  127  Mass.  191,  34  Am.  Rep.  301 ;   Briggs  v.  Evans,  27  N.  C.  16. 

7  9  White  V.  Kellis,  31  N.  Y.  405,  88  Am.  Dee.  282. 

80  Bennett  v.  Allcott,  2  Term  R.  166;  Davidson  v.  Abbott,  52  Vt.  570,  36 
Am.  Rep.  7G7;  Herring  v.  Jester,  2  Honst.  (Del.)  66;  Sutton  v.  Hufifman,  32 
N.  J.  Law,  58 ;  Bayles  v.  Burgard,  48  111.  App.  371 ;  Mercer  v.  Walmsley, 
5  Har.  &  J.  (Md.)  27,  9  Am.  Dec.  486;  Lee  v.  Hodges,  13  Grat.  (Va.)  726; 
Vossel  V.  Cole,  10  Mo.  634,  47  Am.  Dec.  136;  Nickleson  v,  Styker,  10  Johns. 
(N.  Y.)  115,  6  Am.  Dec.  318;  Thomp.son  v.  Millar,  1  Wend.  (N.  Y.)  447;  Pat- 
terson V.  Thompson,  24  Ark.  55;  Briggs  v.  Evans,  27  N.  C.  21;  Hartman  v. 
McCrary,  59  Mo.  App.  571. 

81  Harper  v.  Luffkin,  7  Barn.  &  C.  387;  Bartley  v.  Richtmyer,  4  N.  Y.  38, 
53  Am.  Dec.  33S ;  Parker  v.  Meek,  3  Sueed  (Tenn.)  29;  Nickleson  v.  Styker, 
10  Johns.  (N.  Y.)  115,  6  Am.  Dec.  318;  and  cases  cited  in  note  53,  supra. 


§§    135-137)        ACTION    FOR   SEDUCTION    OF   DAUGHTER.  303 

been  held  siifficient.^^    And  it  has  been  held  that  service  may  be  pre- 
sumed where  an  adult  daughter  continues  to  live  with  her  father,^* 

The  right  to  maintain  an  action  for  the  seduction  or  debauching  of 
a  child  is  not  necessarily  limited  to  the  father.  He  must  sue  if  entitled 
to  the  child's  services.  On  his  death  or  desertion,  the  action  may  be 
maintained  by  the  mother.^*  And,  generally,  an  action  will  lie  by  any 
person  who  stands  in  loco  parentis,  and  is  therefore  entitled  to  the 
child's  services.®*^ 

Statutory  Actions  for  Seduction. 

By  statute,  in  some  states,  the  fiction  of  loss  of  service  to  sustain  an 
action  by  a  parent  for  the  seduction  or  debauching  of  his  daughter  has 
been  abolished,  and  the  parent  can  recover  without  showing  loss  of 
service.^®  Her  consent,  as  has  been  seen,  prevented  a  daughter  from 


8  2  Cases  cited  above.  And  see  Wallace  v.  Clark,  2  Overt.  (Tenn.)  93,  5 
Am.  Dec.  654. 

83  See  Sutton  v.  Huffman,  32  N.  J.  Law,  58;  Brown  v.  Ramsay,  29  N.  J. 
Law,  118;  Briggs  v.  Evans,  27  N.  C.  21;  Wilhoit  v.  Hancock,  5  Bush  (Ky.) 
567.     See  Hartman  v.  McCrary,  59  AIo.  App.  571. 

8  4  Ante,  p.  296;  Bedford  v.  McKowl,  3  Esp.  119;  Furman  v.  Van  Sise,  56 
N.  Y.  435,  15  Am.  Rep.  441;  Heaps  v.  Dunham,  95  111.  5S3 ;  Abrahams  v. 
Kidney,  104  Mass.  222,  6  Am.  Rep.  220;  Ellington  v.  Ellington,  47  Miss.  329; 
Davidson  v.  Abbott,  52  Vt.  570,  36  Am.  Rep.  767;  Gray  v.  Dnrlaud,  50  Barb. 
(N.  Y.)  100 ;  Id.,  51  N.  Y.  424 ;  Keller  v.  Donnelly,  5  Md.  211 ;  Coon  v.  Moffitt, 
3  N.  J.  Law,  583,  4  Am.  Dec.  392 ;  Hammond  v.  Corbett,  50  N.  H.  501,  9  Am. 
Rep.  288;  Matthewson  v.  Perry,  37  Conn.  435,  9  Am.  Rep.  339.  But  see  South 
V.  Denniston,  2  Watts  (Pa.)  474.  In  Coon  v.  Moffitt,  3  N.  J.  Law,  583,  4  Am. 
Dec.  392,  it  was  held  that  an  action  might  be  maintained  by  the  mother  for 
the  seduction  of  her  daughter  during  the  father's  lifetime,  and  while  the 
daughter  was  in  the  constructive  service  of  her  father,  where  the  mother, 
after  the  father's  death,  supported  and  cared  for  the  daughter,  paid  her 
lying-in  expenses,  and  became  entitled  to  and  lost  her  services ;  the  loss  of 
services  being  considered  the  gist  of  the  action.  And  see  Parker  v.  Meek,  3 
Sneed  (Tenn.)  29.  But  see,  contra,  Logan  v.  Murray,  6  Serg.  &  R.  (Pa.)  175, 
9  Am.  Dec.  422 ;   Vessel  v.  Cole,  10  Mo.  634,  47  Am.  Dec.  136. 

8  5  Ante,  p.  297;  Irwin  v.  Dearman,  11  East,  23;  Manvell  v.  Thomson,  2 
Car.  &  P.  303 ;  Davidson  v.  Goodall,  18  N.  IL  423 ;  Keller  v.  Donnelly,  5  Md. 
211 ;  Ball  v.  Bruce,  21  111.  101 ;  Maguinay  v.  Saudek,  5  Sneed  (Tenn.)  146 ; 
Bracy  v.  Kibbe,  31  Barb.  (N.  Y.)  273 ;  IngersoU  v.  Jones,  5  Barb.  (N.  Y.)  6G1, 
But  see  Bartley  v.  Richtmyer,  4  N.  Y.  38,  53  Am.  Dec.  338. 

86  Hein  v.  Holdridge,  78  Minn.  408,  81  N.  W.  522;  Schmit  v.  Mitchell,  59 
Minn.  251,  61  N.  W.  140.  In  this  case  it  was  held  that  the  action  will  lie 
under  the  statute,  where  the  father's  home  is  in  fact  the  daughter's  home, 
though  she  is  of  age  and  employed  elsewhere,  but  not  where  she  is  for  no 


304  RIGHTS  OF   PARENTS  AND   OF   CHILDREN.  (Ch.  10 

maintaining  an  action  at  common  law  for  her  seduction ;  ®^  but  in 
some  states  a  right  of  action  has  been  given  her  by  statute.  This, 
however,  is  a  question  not  within  our  subject,  as  it  has  nothing  to  do 
with  the  relation  of  parent  and  child. 


ACTION  BY  PARENT  FOR  ABDUCTING,  ENTICING,  OR  HARBOR- 
ING CHILD. 

138.  A  parent,  or  any  one  standing  in  loco  parentis,  has  a  right  of 

action  for  loss  of  services  and  incidental  expenses  against  one 
who   abducts   or  \?Tongfully   entices  or  harbors  his   child. 

139.  The  same  mles  apply  here  as  in  the  case  of  other  injuries,  as 

to  the  necessity  to  shoiv  the  actual  op  constructive  relation- 
ship of  master  and  servant. 

The  right  of  a  parent  to  the  custody  and  services  of  his  minor  chil- 
dren gives  him  a  right  of  action  against  any  one  who  abducts  or  de- 
signedly entices  his  child  away  from  him,  or  who  harbors  the  child, 
knowing  that  it  has  wrongfully  left  its  home.**  The  parent  may  sue 
either  in  assumpsit  or  in  tort.**  The  action  in  assumpsit  is  on  the  the- 
ory that  the  defendant  has  impliedly  undertaken  to  pay  for  the  serv- 
ices of  the  child.""     The  action  in  tort  is  the  ordinary  action  of  tres- 

purpose  a  member  of  his  family.  In  Patterson  v.  Hayden,  17  Or.  238,  21  Pac. 
129,  3  L.  R.  A.  529,  11  Am.  St.  Rep.  822,  it  was  held  that,  under  such  a  stat- 
ute, the  seduction  was  the  gist  of  the  action,  and,  therefore,  that  an  action 
would  not  lie  against  a  man  for  having  intercourse  with  a  woman  of  easy 
virtue,  without  any  seduction.  In  Stoudt  v.  Shepherd,  73  Mich.  588,  41  N.  W. 
690,  however,  it  was  held  that  such  lack  of  virtue  goes  in  mitigation  of  dam- 
ages only. 

87  Ante,  p.  299. 

88  Evaus  v.  Walton,  L.  R.  2  C.  P.  615;  Everett  v.  Sherfey,  1  Iowa,  356; 
Butterfield  v.  Ashley,  6  Cush.  (Mass.)  240 ;  Stowe  v.  Heywood,  7  Allen  (Mass.) 
118;  Caughey  v.  Smith,  50  Barb.  (N.  Y.)  351;  Moritz  v.  Garnhart,  7  Watts 
(Pa.)  302,  32  Am.  Dec.  702;  Grand  Rapids  &  I.  R.  Co.  v.  Showers,  71  lud. 
451 ;  Thompson  v.  Howard,  31  xMich.  309 ;  Vaughan  v.  Rhodes,  2  McCord  (S. 
C.)  227,  13  Am.  Dec.  713;  Magoe  v.  Holland,  27  N.  J.  Law,  86,  72  Am.  Dec. 
341 ;  Plummer  v.  Webb,  4  Mason,  380,  Fed.  Cas.  No.  11,233 ;  Sargent  v.  Math- 
ewson,  38  N.  H.  54.  See  Loomis  v.  Deets  (Md.)  30  Atl.  612.  The  action 
cannot  be  maintained  by  the  mother,  if  the  father  is  alive  and  resides  with 
her.  Soper  v.  Igo,  Walker  Co.,  121  Ky.  550,  89  S.  W.  538,  1  L.  R.  A.  (N. 
S.)  302. 

8  0  Thompson  v.  Howard,  31  Mich.  309. 
•0  Thompson  v.  Howard,  31  Mich.  309. 


§§    138-139)      ABDUCTING,  ENTICING,  OR   HARBORING   CHILD.  305 

pass  on  the  case  for  the  wrong  and  the  consequent  loss  of  the  child's 
services.®^  It  has  also  been  held  that  an  action  will  lie  in  trespass  vi 
et  armis,  for  the  loss  of  the  child's  society,  without  any  allegation  of 
loss  of  service.*^  The  intent  of  a  person  harboring  a  child  who  has 
run  away  from  home  is  material.  The  employment,  in  good  faith,  of 
a  runaway  child,  without  knowledge  that  he  has  left  his  home  wrong- 
fully, is  not  a  wrong.  ^^ 

In  an  action  for  abducting,  enticing,  or  harboring,  the  recovery 
may  include  the  expense  to  which  the  plaintiff  has  been  put  in  re- 
gaining the  custody  of  the  child."*  In  such  an  action  as  this,  the  gist 
of  the  action  is  the  loss  of  the  child's  services,  and  the  relation  of  mas- 
ter and  servant,  actual  or  constructive,  between  the  plaintiff  and  the 
child,  must  be  shown."*  A  father,  for  instance,  cannot  maintain  an 
action  for  enticing  away  his  son,  whom  he  has  suffered  to  remain 
under  the  custody  of  his  mother,  from  whom  he  (the  father)  is  sepa- 
rated, and  to  be  supported  and  employed  by  her.®**  The  rules  as  to 
constructive  service  are  the  same  in  these  as  in  other  cases.®^ 


81  Evans  V.  Walton,  L.  R.  2  C.  P.  615;  Jones  v.  Tevis,  4  Litt.  (Ky.)  25,  14 
Am.  Dec.  98;  Sargent  v.  Mathewson,  38  N.  H.  54;  Noice  v.  Brown,  39  N.  J. 
Law,  5G9. 

82  Kirkpatrlck  v.  Lockhart,  2  Brev.  (S.  C.)  276;  Vaughan  v.  Rhodes,  2  Mc- 
Cord  (S.  C.)  227,  13  Am.  Dec.  713.  And  see  3  Bl.  Comm.  140.  But  see  Jones 
V.  Tevis,  4  Litt.  (Ky.)  25,  14  Am.  Dee.  98.  In  Washburn  v.  Abrams,  122  Ky. 
53,  90  S.  W.  997,  it  was  held  that  a  parent  may  maintain  an  action  for  ab- 
duction and  detention  of  a  child,  based  on  the  principle  of  the  parent's  right 
to  the  child's  sen'ices,  though  the  child  renders  no  services,  in  which  recovery 
may  be  had  for  injury  to  feelings  and  for  loss  of  companionship  of  the  child, 
as  well  as  loss  of  services. 

8  3  Butterfield  v.  Ashley,  6  Cush.  (Mass.)  249;  Caughey  v.  Smith,  47  N.  Y. 
244;  Kenney  v.  Baltimore  &  O.  R.  Co.,  101  Md.  490,  61  Atl.  581,  1  L.  R,  A. 
(N.  S.)  205.     Sargent  v.  Mathewson,  38  N.  H.  54. 

84  Magee  v.  Holland,  27  N.  J.  Law,  86,  72  Am.  Dec.  341. 

85  Magee  v.  Holland,  27  N.  J.  Law,  86,  72  Am.  Dec.  341 ;  Butterfield  v. 
Ashley,  6  Cush.  (Mass.)  249;  Wodell  v.  Coggeshall,  2  Mete.  (Mass.)  89,  35 
Am.  Dec.  391. 

8  8  Wodell  V.  Coggeshall,  2  Mete.  (Mass.)  89,  35  Am.  Dec.  391. 
»T  Ante,  p.  299. 

TirF.P.&  D.Eel.(2d  Ed.)— 20 


306  EIGHTS  OP   PARENTS  AND   OF  CHILDREN.  (Ch.  10 


PARENT'S  RIGHTS  IN  CHILD'S  PROPERTY. 

140.   Apart  from  his  child's  earnings  a  parent,  as  such,  has  no  rights 
in  property  acquired   by   his   child. 

Whatever  property  a  child  may  acquire  in  any  manner,  except  as 
compensation  for  services  rendered  by  him,  belongs  to  him  absolutely, 
and  the  parent,  as  such,  has  no  claim  to  it.®*  "He  has  no  title  to  the 
property  of  the  child,  nor  is  the  capacity  or  right  of  the  latter  to  take 
property  or  receive  money  by  grant,  gift,  or  otherwise,  except  as  a 
compensation  for  services,  in  any  degree  qualified  or  limited  during 
minority.  Whatever,  therefore,  an  infant  acquires  which  does  not 
come  to  him  as  a  compensation  for  services  rendered,  belongs  abso- 
lutely to  him,  and  his  father  cannot  interpose  any  claim  to  it,  either 
as  against  the  child,  or  as  against  third  persons  who  claim  title  or  pos- 
session from  or  under  the  infant."  **  It  follows  from  this  that  one 
who  pays  money  belonging  to  a  child  to  his  parent  does  so  at  his  own 
risk,  and  will  not  be  protected  by  the  parent's  discharge.^  Where  a 
child  has  not  been  emancipated,  but  is  supported  by  his  parent,  his 
services,  as  we  have  seen,  belong  to  the  parent.  His  earnings  from 
services  rendered  for  another,  without  a  gift  of  them  to  him  by  the 
parent,  stand  on  the  same  footing,  and  belong  to  the  parent.  And  so 
it  is  with  property  purchased  with  his  earnings.^  What  is  given  to  a 
child  by  his  parent  in  the  way  of  support  and  maintenance,  and  for 
purposes  of  education,  as  clothing,  school  books,  etc.,  belongs  to  the 
parent,  and  he  may  reclaim  it,  or  recover  damages  for  its  injury.^ 
But  what  is  given,  not  in  the  way  of  support  and  maintenance,  but 


08  Banks  v.  Conant,  14  Allen  (Mass.)  497 ;  Keeler  v.  Fassett,  21  Vt.  539,  52 
Am.  Dec.  71;  Jackson  v.  Combs,  7  Cow.  (N.  Y.)  3G;  Rhoades  v.  McNulty,  52 
Mo.  App.  301.  A  child,  having  a  right  of  action  for  a  negligent  Injury  inflict- 
ed on  him  at  birth,  may  prosecute  the  same  and  recover  the  damages  sustain- 
ed, unhampered  by  any  defense  predicated  on  a  release  executed  by  his 
parents.    Kirk  v.  INIiddlebrook,  201  Mo.  245,  100  S.  W.  450. 

0  8  Banks  v.  Conant,  14  Allen  (Mass.)  497. 

1  Dagley  v.  Tolferry,  1  P.  Wms.  285;  Perry  v.  Carmichael,  95  III.  519;  Clark 
V.  Smith,  13  S.  C  585;  Linton  v.  Walker,  8  Fla.  144,  71  Am.  Dec.  105;  Brown 
V.  State,  42  Ala.  540. 

2  Ante,  p.  276. 

8  Dickinson  v.  Winchester,  4  Cush.  (Mass.)  114,  50  Am.  Dec.  7G0;  Parme- 
lee  V.  Smith,  21  111.  G20;   Prentice  v.  Decker,  49  Barb.  (N.  Y.)  21. 


§   141)  GIFTS,  CONVEYANCES,  AND   CONTRACTS.  307 

with  the  intention  that  it  shall  become  the  property  of  the  child,  will 
become  his.*    And  this  is  true  of  a  gift  of  his  earnings.* 


GIFTS,    CONVEYANCES,    AND    CONTRACTS     BET'WEEN    PARENT 

AND    CHILD. 

141.    Gifts,  conveyances,  and  contracts  bet-ween  parent  and  child  are 
as  valid  as  if  betrween  strangers.      But^ 

(a)  A  gift  or  conveyance  from  cMld  to  parent,  or  a  contract  bene- 

ficial to  the  parent,  is  presumed  to  have  been  made  under 
parental  influence,  and  to  be  voidable  by  the  child,  if  made 
before  or  shortly  after  attaining  his  majority;  and  the  parent 
must  sho-vir  that  there  ivas  no  undue  influence. 

(b)  Gifts,   conveyances,   and    contracts   by   a   minor   child   are   void- 

able at  his   option,   on  the  ground   of  infancy. 

A  gift  from  a  parent  to  his  child,  accompanied  by  delivery,  is  as 
valid  as  a  gift  between  strangers."  Delivery  of  a  gift  from  a  father  to 
his  child,  Avhen  the  property  remains  in  the  family,  is  often  difficult 
to  prove;  but,  when  the  gift  is  in  fact  shown  to  have  been  fully  ex- 
ecuted by  delivery,'  it  will  be  upheld.  A  child  may  likewise  make  a 
valid  gift  to  its  parent,  if  the  gift  is  not  tainted  with  undue  parental 
influence.*  The  same  is  true  of  conveyances  between  parent  and 
child.®    And  it  is  also  true  of  contracts  between  them.    The  relation- 


*  Wheeler  v.  St.  Joseph  &  W.  Ry.  Co.,  31  Kan.  640,  3  Pac.  297;  Grangiac  v. 
Arden,  10  Johns.  (N.  Y.)  293;  Dickinson  v.  Winchester,  4  Cush.  (Mass.)  114, 
50  Am.  Dec.  7G0. 

6  Morse  v.  Welton,  6  Conn.  547,  16  Am.  Dec.  73 ;  ante,  p.  285.  As  to  gift 
of  earnings  as  against  creditors,  see  ante,  p.  27G. 

6  May  V.  May,  33  Beav.  81,  87 ;  Sanborn  v.  Goodhue,  28  N.  H.  48,  59  Am. 
Dec.  398;  Kellogg  v.  Adams,  51  Wis.  138,  8  N.  W.  115,  37  Am.  Rep.  815; 
Dodd  V.  McCraw,  8  Ark.  84,  46  Am.  Dec.  301 ;  Danley  v.  Rector,  10  Ark.  211, 
50  Am.  Dec.  242 ;  Martrick  v.  Linfield,  21  Pick.  (Mass.)  325,  32  Am.  Dec.  2G5 ; 
Kerrigan  v.  Rautigan,  43  Conn.  17;  Pierson  v.  Ileisey,  19  Iowa,  114;  Hille- 
brant  v.  Brewer,  6  Tex.  45,  55  Am.  Dec.  757;  Sims  v.  Sims'  Adm'r,  8  Port. 
(Ala.)  449,  33  Am.  Dec.  293. 

7  See  cases  above  cited.  It  requires  less  positive  evidence  to  establish  a 
delivery  of  a  gift  from  a  father  to  his  children  than  it  does  between  persons 
who  are  not  related.    Jenniug  v.  Rohde,  99  Minn.  335,  109  N.  W.  597. 

8  Note,  12,  infra. 

9  Taylor  v.  Staples,  8  R.  I.  170,  5  Am.  Rep.  556;  Kennedy  v,  McCann,  101 
Md.  G43,  61  Atl.  625;  Powers  v.  Powers,  46  Or.  479,  80  Pac.  1058;  Jenning 
V.  Rohde,  99  Minn.  335,  109  N.  W.  597;    Becker  v.  Schwerdtle,  6  Cal.  App. 


308  RIGHTS  OF   PARENTS  AND   OF   CHILDREN.  (Ch.  10 

ship  of  parent  and  child  imposes  no  disabiHty  upon  the  parties  to  con- 
tract with  each  other.  Their  contracts,  in  the  absence  of  undue  in- 
fluence by  the  parent,  are  just  as  vaHd  as  contracts  between  stran- 
gers.^** 

As  will  be  seen  in  a  subsequent  chapter,  an  infant  is  not  bound  by 
his  contracts,  gifts,  or  conveyances  if  he  chooses  to  avoid  them  on  at- 
taining his  majority ;  but  the  other  party,  being  an  adult,  is  bound  if 
the  infant  elects  to  hold  him.^^  The  principles  governing  contracts 
and  conveyances  by  infants  must  apply  to  contracts  and  conveyances 
between  a  parent  and  his  minor  child. 

Because  of  the  parental  relation  and  the  opportunity  it  affords  for 
the  exercise  of  undue  influence  by  the  parent  over  the  child,  a  contract 
between  parent  and  child,  beneficial  to  the  parent,  or  a  gift  or  convey- 
ance by  a  child  to  his  parent,  made  before  or  shortly  after  the  child 
has  attained  his  majority,  will  be  presumed  to  have  been  the  result  of 
undue  influence  by  the  parent,  and  may  be  avoided  by  the  child,  unless 
the  parent  shows  that  no  undue  influence  was  exercised,  and  that  the 
child  acted  freely  and  with  a  full  knowledge  of  all  material  facts. ^* 
The  presumption  of  undue  influence  from  parental  relations  does  not 
cease  as  soon  as  the  child  becomes  of  age.  It  continues  until  there  is 
such  a  complete  emancipation  that  the  judgment  of  the  child  is  under 
no  control.  In  Bergen  v.  Udall,^^  a  daughter,  soon  after  reaching  her 
majority,  made  a  voluntary  conveyance  for  the  benefit  of  her  father. 
"A  transaction  like  the  present,"  said  the  court,  "will  be  examined  by 
the  court  with  the  most  jealous  scrutiny  and  suspicion.  The  person  re- 
lying upon  it  must  show  affirmatively,  not  only  that  the  person  who 
made  it  understood  its  nature  and  effect,  and  executed  it  voluntarily, 
but  that  such  will  and  intention  was  not  in  any  degree  the  result  of 

462,  92  Pae.  398.  A  deed  by  a  father  to  his  bastard  son  is  valid.  Hall  v. 
Hall,  82  S.  W.  300,  26  Ky.  Law  Rep.  610. 

10  Abbott  V.  Converse,  4  Allen  (Mass.)  530;  Hall  v. 'Hall,  44  N.  H.  293; 
Steel  V.  Steel,  12  Pa.  64. 

11  Post,  p.  3S6. 

12  Clark,  Cont.  367,  and  cases  there  cited;  Wright  v,  Vanderplanb,  8  De 
Gex,  M.  &  G.  133;  Archer  v.  Hudson,  7  Beav.  551 ;  Hoghton  v.  Hoghton,  15 
Beav.  278;  Savery  v.  King,  5  H.  L.  Cas.  027;  Miller  v.  Simonds,  72  Mo.  6G9; 
Bergen  v.  Udall,  31  Barb.  (N.  Y.)  9;  Taylor  v.  Taylor,  8  How.  183,  12  L.  Ed. 
1040;  Berkmeyer  v.  Kellerman,  32  Ohio  St.  239,  30  Am.  Rep.  577;  Ripple  v. 
Kuehne,  100  Md.  672,  60  Atl.  464;  Eighmy  v.  Brock,  126  Iowa,  535,  102  N. 
W.  444. 

18  31  Barb.  (N.  Y.)  9. 


§§    142-143)  ADVANCEMENTS.  309 

misrepresentation  or  mistake,  and  was  not  induced  by  the  exertion,  for 
selfish  purposes,  and  for  his  own  exclusive  benefit,  of  the  influence  and 
control  which  he  possessed  as  a  father  over  his  daughter." 

It  has  already  been  seen  that  a  parent  may  relinquish  his  right  to 
the  services  of  his  minor  child,  and  that  he  may  bind  himself  by  an 
agreement  to  compensate  the  child  for  his  services.^*  Because  of  the 
relationship,  however,  there  is  a  presumption  that  no  compensation 
was  intended;  and  the  child  must  show  affirmatively  that  there  was 
an  agreement  for  compensation.^"  The  same  is  true  where  a  child 
who  has  attained  his  majority  continues  to  live  with  his  parents,  and 
to  render  services  as  during  his  minority.  The  presumption  is  that 
the  services  were  intended  to  be  gratuitous,  and  the  burden  is  on  the 
child  to  show  that  both  parties  intended  that  compensation  should  be 
made.^^  A  like  rule  applies  where  a  parent  seeks  to  recover  as  on  a 
contract  with  a  child  for  support  or  maintenance.^' 


ADVANCEMENTS. 

142.  Gifts  of  real  or  personal  property  from  parent  to  child,  in  an- 

ticipation of  the  child's  share  of  the  parent's  estate  under  the 
statutes  of  distribution,  are  knoxim  as  "advancements." 

143.  The    expenses    of    maintenance    and    education,    and    inconsider- 

able grifts,  are  not  advancements;  but  it  is  prima  facie  other- 
wise with  gifts  made  to  start  a  child  in  business  or  a  pro- 
fession, or  to  make  a  provision  for  him,  and  other  substan- 
tial gifts. 

When  a  parent  makes  a  gift  to  any  of  his  children,  either  out  of 
his  real  or  his  personal  estate,  in  anticipation  of  the  child's  share  of 
his  estate,  the  gift  is  known  as  an  advancement,  and  will  be  taken  in- 
to consideration  in  the  distribution  of  the  estate  in  case  of  intestacy.** 

14  Ante,  p.  280,  and  cases  there  cited. 

18  Clark,  Cont.  28,  and  cases  there  cited;  Bantz  v.  Bautz,  52  Md.  693;  Hef- 
fron  V.  Brown.  1.55  III.  322,  40  N.  E.  583;  Faloon  v.  Mclntyre,  118  111.  292, 
8  N.  E.  315 ;   Miller  v.  Miller,  16  111.  296. 

16  Clark,  Cont.  28;  Dye  v.  Kerr,  15  Barb.  (N.  Y.)  444;  Pellage  v.  Pellage, 
32  Wis.  130;  Mosteller's  Appeal,  30  Pa.  473;  Fitch  v.  Peckham,  16  Vt.  150; 
Young  V.  Herman,  97  N.  C.  280,  1  S.  E.  792;  Freeman  v.  Freeman,  65  111.  106; 
Hall  V.  Hall,  44  N.  H.  293. 

17  See  Clark,  Cont.  28. 

"Abb.  Desc.  Wills  &  Adm.  10,  138;  4  Kent,  Comm.  417,  418;  Grattan  v. 
Grattan,  18  111.  167 ;  Wallace  v.  Reddick,  119  111.  151,  8  N.  E.  801 ;  Brunson 


310  BIGHTS  OF  PARENTS  AND  OF  CHILDREN.  (Ch.  10 

The  doctrine  of  advancement  applies  in  the  case  of  the  distribution  of 
intestate  estates,  under  the  statute  of  distribution  in  England  (St.  22 
&  23  Car.  II.  c.  10),^*  and  under  similar  statutes  in  the  various  states 
of  this  country.^" 

Not  every  gift  from  parent  to  child  will  be  considered  as  an  ad- 
vancement. Payments  made  for  the  ordinary  expenses  of  mainte- 
nance and  education  are  not  advancements,  nor  are  gifts  of  money  for 
current  expenses,  or  inconsiderable  presents.^^  But  payments  made 
to  enable  a  child  to  enter  a  profession,  or  to  start  him  in  business,  are 
prima  facie  deemed  advancements,  such  as  the  admission  fee  to  one 
of  the  inns  of  court,  the  cost  of  a  commission  in  the  army,  or  the  pur- 
chase of  the  good  will  and  stock  in  trade  of  a  business.*^  And  in  all 
other  cases,  when  substantial  payments  of  money  have  been  made  to 
a  child,  or  he  has  received  real  or  personal  property  of  considerable 
value,  the  presumption  is  that  they  have  been  given  him  by  way  of 
advancements.  "If,  in  the  absence  of  evidence,  you  find  a  father  giv- 
ing a  large  sum  in  one  payment,  there  is  a  presumption  that  that  is 
intended  to  start  him  in  life,  or  make  a  provision  for  him."  ^' 


V.  Henry,  140  Ind.  455,  39  N.  E.  256 ;  Murphy  v.  Murphy,  95  Iowa,  271,  63  N. 
W.  697. 

19  Edwards  v.  Freeman,  2  P.  Wms.  435:   Walton  v.  Walton,  14  Ves.  318. 

20  Marshall  v.  Rench,  3  Del.  Oh.  239;  Huggins  v.  Huggins,  71  Ga.  G6;  Bee- 
be  V.  Estabrook,  79  N.  Y.  246;  Grattan  v.  Grattan,  IS  111.  167. 

21  Taylor  v.  Taylor,  L.  R.  20  Eq.  155;  Cooner  v.  May,  3  Strob.  Eq.  (S.  C.) 
185;  In  rt  Riddle's  Estate,  19  Pa.  431;  Bradsher  v.  Cannady,  76  N.  C.  445; 
Bowles  V.  Winchester,  13  Bush.  (Ky.)  1;  Elliot  v.  Collier,  1  Ves.  Sr.  16; 
Sanford  v.  Sanford,  61  Barb.  (N.  Y.)  293 ;  Mitchell's  Distributees  v.  Mitchell's 
Adm'r,  8  Ala.  414;  In  re  King's  Estate,  6  Whart.  (Pa.)  370;  Meadows  v. 
Meadows,  33  N.  C.  148. 

2  2  Taylor  v.  Taylor,  L.  R.  20  Eq.  155;  Boyd  v.  Boyd,  L.  R.  4  Eq.  305; 
Bruce  v.  Griscom,  9  Hun  (N.  Y.)  280;  Ison  v.  Ison,  5  Rich.  Eq.  (S.  C.)  15; 
McCaw  V.  Blewit,  2  McCord,  Eq.  (S.  C)  90 ;   Shiver  v.  Brock,  55  N.  C.  137. 

2  3  Taylor  v.  Taylor,  L.  R.  20  Eq.  155.  And  see  Sanford  v.  Sauford,  61 
Barb.  (N.  Y.)  293 ;  Graves  v.  Spedden,  46  Md.  527 ;  Gordon  v.  Barkelew,  6  N. 
J.  Eq.  94 ;  Hatch  v.  Straight,  3  Conn,  31,  8  Am.  Dec.  152 ;  Hodgson  v.  Macy,  8 
Ind.  121;  Ck)wden  v.  Ck)wden,  28  Ohio  Cir.  Ct.  R.  71;  Taylor  v.  Taylor,  4 
Gilman  (111.)  303;  Maxwell  v.  Maxwell,  109  111.  5SS;  Sampson  v.  Sampson, 
4  Serg.  &  R.  (Pa.)  329;  Watkins  v.  Young,  31  Grat.  (Va.)  84;  Murphy  v. 
Murphy,  95  Iowa,  271,  63  N.  W.  697;  Phillips  v.  Phillips,  90  Iowa,  541,  58  N. 
W.  879;  Roberts  v.  Coleman,  37  W.  Va.  143,  16  S.  E.  482;  Culp  v.  Wilson, 
133  Ind.  294,  32  N.  E.  928;  New  v.  New,  127  Ind.  576,  27  N.  E.  154;  Rey- 
nolds' Adm'r  v.  Reynolds,  92  Ky.  556,  18  S.  W.  517;   McClanahan  v.  McOlana- 


§    145)  DOMICILE    OF   CHILD.  311 

DUTY   OF   CHILD   TO   SUPPORT   PARENTS. 

144.  A  child  is  under  no  legal  obligation  to  support  his  parents,  un- 

less the  duty  is  imposed  by  statute. 

A  child  is  under  no  legal  obligation  at  common  law  to  support  his 
parents,  even  though  they  are  destitute  and  infirm.  There  is  a  strong 
moral  obligation,  but  no  such  duty  is  recognized  by  the  law,  unless, 
as  is  the  case  in  some  jurisdictions,  the  duty  is  expressly  imposed  by 
statute.^*  While  they  are  entitled  to  the  child's  wages  during  its  mi- 
nority, the  relation  which  the  child  bears  to  them  imposes  no  legal  du- 
ty of  maintenance,  and  no  promise  on  the  part  of  the  child  to  pay  even 
for  necessaries  furnished  them  will  be  implied.*" 

DOMICILE  OF  CHILD. 

145.  The  child's  domicile  of  origin  is  determined  by  the  domicile  of 

the   father.      The    child's    domicile   changes   with   the    father's, 
or  •with  the  mother's,  if  a  widow^,  unless  she  remarries. 

The  domicile  of  a  legitimate  child  is  originally  that  of  its  father, 
and,  where  the  parent  changes  his  domicile,  the  child's  domicile  changes 

han,  36  W.  Va.  34,  14  S.  E.  419;  Kemp  v.  Cossart,  47  Ark.  62,  14  S.  W.  465. 
Insurance  by  a  father  on  his  life  in  the  name  of  a  son  was  held  an  advance- 
ment in  Cazassa  v.  Cazassa,  92  Tenn.  573,  22  S.  W.  500,  20  L.  R.  A.  178,  36 
Am.  St.  Rep.  112.  Of  course,  the  presumption  may  always  be  rebutted  by 
showing  that  a  gift  or  payment  for  services  was  intended,  or  that  other  con- 
sideration was  given  by  the  child.  See  Hattersley  v.  Bissett,  51  N.  J.  Eq.  597, 
29  Atl.  187,  40  Am.  St.  Rep.  532;  Beakhust  v.  Crumby,  18  R.  I.  689,  30  Atl. 
453,  31  Atl.  753 ;  Hall  v.  Hall,  107  Mo.  101,  17  S.  W.  Sll ;  Groom  v.  Thomp- 
son (Ky.)  16  S.  W.  369,  13  Ky.  Law  Rep.  223 ;  Comer  v.  Comer,  119  111.  170, 
8  N.  E.  796. 

24  Duffy  V.  Yordi,  149  Cal.  140,  84  Pac.  838,  4  L.  R.  A.  (N.  S.)  1159,  117 
Am.  St.  Rep.  125. 

2  0  Rex  V.  Munden,  1  Strange,  190;  Lebanon  v.  Griffin,  45  N.  II.  558;  Ed- 
wards V.  Davis,  16  Johns.  (N.  Y.)  281;  Becker  v.  Gibson,  70  Ind.  239;  Stone 
V.  Stone,  32  Conn.  142.  In  some  states  it  is  made  the  duty  of  children  of 
any  poor  person,  who  is  unable  to  maintain  himself  by  work,  to  maintain 
such  person  to  the  extent  of  their  ability.  Generally,  a  mode  of  enforcing 
such  liability  Is  prescribed  by  the  statute.  If  no  mode  is  provided,  one  who 
maintains  a  person  within  the  terms  of  the  statute,  whose  son,  though  able, 
neglected  and  refused  to  maintain  him,  may  recover  therefor  from  the  sou. 
McCook  County  v.  Kammoss,  7  S.  D.  558,  04  N.  W.  1123,  31  L.  R.  A.  461,  58 
Am.  St.  Rtp.  854 ;   Howe  v.  Hyde,  88  Mich.  91,  50  N.  W.  102. 


512  RIGHTS  OF  PARENTS  AND   OF   CHILDREN.  (Ch.  10 

with  it.'^'  The  mother's  domicile  acquired  after  her  husband's  death 
determines  that  of  the  child,=^^  but  the  child's  domicile  will  not  follow 
the  mother's  in  case  of  her  remarriage,  but  continues  to  be  the  same 
as  it  was  on  the  death  of  the  father.''^  An  infant,  not  being  sui  juris, 
cannot  acquire  a  domicile  of  his  own,^"  though,  for  the  purpose  of  ob- 
taining a  settlement,  a  pauper,  after  emancipation,  has  been  held  capa- 
ble of  acquiring  an  independent  domicile.'" 

2  0  Somerville  v.  Somerville,  5  Ves.  750;  Sharpe  v.  Crispin,  L.  R.  1  Prob. 
&  Div.  611 ;  Taylor  v.  Jeter,  33  Ga.  195,  81  Am.  I>ec.  202;  Daniel  v.  Hill,  52 
Ala.  430.    As  to  domicile  of  bastard,  see  ante,  p.  247. 

27  Potinger  v.  Wightman,  3  Mer.  67 ;  Johnstone  v.  Beattie,  10  Clark.  &  F 
42;  Lamar  v.  Micou,  112  U.  S.  452,  470,  5  Sup.  Ct.  221,  28  L.  Ed.  751;  Ryall 
V.  Kennedy,  40  N.  Y.  Super.  Ct.  347 ;   Carlisle  v.  Tuttle,  30  Ala.  613. 

2  8Ciunner  Parish  v.  Milton  Parish,  3.  Salk.  259;  Potinger  v.  Wightman, 
3  Mer.  67 ;  Lamar  v.  Micou,  112  U.  S.  452,  5  Sup.  Ct.  221,  28  L.  Ed.  751 ;  Brown 
V.  Lynch,  2  Bradf.  Sur.  (N.  Y.)  214 ;  Johnson  v.  Copeland's  Adm'r,  35  Ala.  521 ; 
Inhabitants  of  Freetown  v.  Inhabitants  of  Taunton,  16  Mass.  52. 

2  9  Somerville  v.  Somerville,  5  Ves.  750;  Brown  v.  Lynch,  2  Bradf.  Sur. 
(N.  Y.)  214;  Lacy  v.  Williams,  27  Mo.  280;  Taylor  v.  Jeter,  33  Ga.  195,  81  Am. 
Dec.  202. 

30  Inhabitants  of  Charleston  v.  Inhabitants  of  Boston,  13  Mass.  469 ;  Over- 
seers of  Washington  Tp.  v.  Overseers  of  Beaver  Tp.,  3  Watts  &  S.  (Pa.)  548; 
Inhabitants  of  Dennysville  v.  Inhabitants  of  Trescott,  30  Me.  470. 


Part  III. 


GUARDIAN  AND  WARD. 


TirF.P.&D.REL.(2D  Ed.)  (313)" 


§§    146-147;  GUARDIANS  DEFINED,  315 


CHAPTER  XI. 

GUARDIANS  DEFINED — SELECTION  AND  APPOINTMENT. 

146-147.  In  General. 

148.  Natural  Guardians. 

149.  Guardians  in  Socage. 

150.  Testamentary  Guardians. 

151.  Chancery  Guardians. 

152.  Statute  Guardians. 

153.  Quasi  Guardians,  or  Guardians  by  EstoppeL 

154.  Guardians  of  Persons  Non  Compotes  Mentis. 

155.  Guardians  Ad  Litem. 

156-158.  Selection  and  Appointment  of  Guardians  by  CourL 

159.  Jurisdiction  to  Appoint  Guardian. 


IN  GENERAI.. 

146.  A  grnardian  is  one  to  ttIioiii  the  laur  intrusts  the  persons  or  es- 

tates, or  both,  of  those  Avho,  by  reason  of  their  infancy  or 
of  mental  infirmities,  are  not  sni  juris.  Persons  under  guard- 
ianship are  called  "xtrards." 

147.  The  various  kinds   of  guardians  are 

(a)  Natural  guardians. 

(b)  Guardians  in  socage. 

(c)  Testamentary  guardians. 

(d)  Chancery   guardians. 

(e)  Statute  guardians. 

(f)  Quasi  guardians  or  guardians  by  estoppel. 

(g)  Guardians  of  persons  non  compotes  mentis  or  spendthrifts, 
(h)    Guardians  ad  litem. 

Guardians  are  divided  into  guardians  of  the  person,  called  in  the 
civil  law  "tutors,"  and  guardians  of  the  estate,  called  in  the  civil  law 
"curators."  These  civil-law  terms  are  in  use  in  Louisiana.^  A  guard- 
ian of  the  person  is  one  who  is  lawfully  invested  with  the  care  of  the 
person  of  the  ward.    A  guardian  of  the  estate  is  one  who  has  been 

1  The  term  "curator"  is  also  used  in  some  other  states.  The  term  sig- 
nifies one  who  has  charge  only  of  the  property  or  estate  of  the  ward,  as 
distinguished  from  "guardian,"  who  has  charge  only  of  the  person,  or  both 
the  person  and  estate.  Biu-gher  v.  Frakes,  67  Iowa,  460,  23  N.  W.  746,  25 
N.  W.  735. 


316  GUARDIANS  DEFINED — SELECTION  AND   APPOINTMENT.     (Ch.  11 

lawfully  invested  with  the  power  of  taking  care  of  and  managing  the 
estate  of  an  infant.  Guardians'  may  also  be  divided  as  stated  in  the 
black-letter  text.  Some  of  them  have  charge  of  the  person  of  the 
ward  only,  while  others  have  charge  of  his  estate  only,  and  others 
have  charge  both  of  the  person  and  estate.  A  guardian  ad  litem,  as 
will  be  seen,  is  a  guardian  merely  for  the  purpose  of  a  suit. 

NATURAL   GUARDIANS. 

148.  The  father,  op,  If  he  is  dead,  the  mother,  or,  if  hoth  are  dead, 
the  next  of  kin  is  the  natural  guardian  of  a  child.  A  natural 
guardian  is  a  guardian  of  the  trard's  person  only. 

At  common  law  there  was  what  was  known  as  a  "guardian  by  na- 
ture." This  guardianship  related  only  to  the  person  of  the  heir  ap- 
parent, and  vested  first  in  the  father,  and  then  in  the  mother.  It  is 
now  obsolete.^  There  was  also  a  guardianship  for  nurture,  which  re- 
lated to  the  person,  but  applied  only  to  the  younger  children.'  These 
two  forms  of  guardianship  are  now  replaced  by  the  natural  guardian- 
ship of  the  parent,  or  next  of  kin,  if  the  parents  are  dead.  The  fath- 
er is  entitled  to  the  custody  of  his  own  children  during  their  infancy, 
not  only  as  guardian  by  nurture,  but  by  nature.*  On  the  death  of  the 
father,  guardianship  by  nature  passes  to  the  mother,  and,  on  her  death, 
to  the  grandfather  or  grandmother  or  any  other  person  who  is  next 
of  kin.^  Prima  facie,  the  natural  guardian  is  entitled  to  the  custody 
of  the  child;  but  there  are  exceptions  to  the  rule,  resulting  from  the 
doctrine  that  the  child's  welfare  must  be  considered  in  awarding  his 
custody.  This  question  has  been  fully  explained  in  treating  of  the  re- 
lation of  parent  and  child.*  The  natural  guardian  of  a  child  has  con- 
trol of  his  person  only.  He  has  no  authority  or  responsibihty,  as  such, 
in  regard  to  the  child's  property.^ 

2  Macph.  Inf.  57;   2  Kent,  Comm.  221. 
8  Macph.  Inf.  60;   2  Kent,  Comm.  221. 

4  Ex  parte  Hopkins,  3  P.  Wms.  152;  In  re  Galleher,  2  Cal.  App.  364,  84 
Pac.  352;    In  re  Wright  (Neb.)  112  N.  W.  311. 

5  Harg.  Co.  Litt.  88b,  note  12 ;  Lamar  v.  Micou,  114  U.  S.  218,  5  Sup.  Ct  857, 
29  L.  Ed.  94;  Holmes  v.  Derrig,  127  Iowa,  025,  103  N.  W.  973;  In  re  Ben- 
ton, 92  Iowa,  202,  60  N.  W.  614,  54  Am.  St  Rep.  546;  Darden  v.  Wyatt,  15 
Ga.  414. 

6  Ante,  p.  267. 

7  2  Kent  Comm.  220 ;  Williams  v.  Gleaveland,  76  Conn.  426,  56  Atl.  850 ; 
Hyde  v.  Stone,  7  Wend.  (N.  Y.)  354,  22  Am.  Dec.  582;    Kline  v.  Beebe,  6 


§   149)  aXTARDIANS   IN    SOCAGE.  317 


GUARDIANS  IN  SOCAGE. 

149.  Guardian  ship  in  socage  iipas  vrtxere  an  infant  acquired  by  do 
scent  land  lield  in  socage^.  Tlxe  next  of  kin  wko  could  not 
possibly  inherit  became  guardian  and  had  authority  over  the 
person  of  the  infant  as  Xfrell  as  the  land,  and  over  personal 
property  connected  Tvith  it,  but  not  over  other  personalty. 
On  reaching  the  age  of  14,  the  infant  could  elect  his  own 
guardian,  and  terminate  the  grua,rdianship.  This  kind  of 
guardianship  is  obsolete  at  common  laxr,  but  there  is  a  similar 
guardianship  by  statute  in  some  jurisdictions. 

"At  the  common  law,  if  lands  held  in  socage  came  to  an  infant  by 
descent,  his  nearest  relative  who  could  not  by  any  possibility  inherit 
the  lands  was  his  guardian  in  socage  until  the  age  of  fourteen,  and  un- 
til the  infant  selected  a  guardian  for  himself.  Such  guardian  might 
lawfully  receive  the  rents  and  profits  of  the  land  during  the  continu- 
ance of  the  guardianship.  If  the  lands  descended  from  the  father  or 
other  paternal  relatives,  the  mother,  or  next  of  kin  on  the  part  of  the 
mother,  was  the  guardian ;  and,  if  the  lands  descended  on  the  part  of 
the  mother,  the  father,  or  next  of  kin  on  the  paternal  side,  was  enti- 
tled to  the  guardianship."  *  It  has  been  held  that  there  could  be  no 
guardianship  in  socage  where  the  infant  acquired  the  lands  by  pur- 
chase, and  not  by  descent.®  To  insure  the  safety  of  the  ward,  the 
guardianship  was  given  by  the  law  to  the  next  of  kin  who  could  not 
possibly  inherit  the  lands,  for  the  guardianship  extended  over  the  per- 
son of  the  ward  as  well  as  the  land.^°  On  reaching  the  age  of  14  the 
infant  could  terminate  the  guardianship,  and  elect  his  own  guardian.^ ^ 


Conn.  494;  Perry  v.  Carmichael,  95  111.  519;  Kendall  v.  Miller,  9  Cal.  591; 
Otto  V.  Schlapkahl,  57  Iowa,  226,  10  N.  W.  651;  Alston  v.  Alston,  34  Ala. 
15;  Linton  v.  Walker,  8  Fla.  144,  71  Am.  Dec.  105;  May  v.  Calder,  2  Mass. 
55;  Miles  v.  Boyden,  3  Pick.  (Mass.)  213;  Johnson's  Adm'r  v.  Johnson's 
Ex'r,  2  Hill,  Eq.  (S.  G.)  280,  29  Am.  Dec.  72;  ante,  p.  308.  But  in  Louisiana 
the  natural  tutrix  may  take  possession  of  property  and  convert  it  for  the 
ward's  benefit.     Hoggatt  v.  Morancj',  10  La.  Ann.  1G9. 

8  Combs  V.  Jackson,  2  Wend.  (N.   Y.)  153,   19  Am.  Dec.   568.     See  1  Bl. 
Comm.  461;   2  Kent.  Comm.  221. 

9  Combs  V.  Jackson,  2  Wend.   (N.  Y.)  153,  19  Am.  Dec.  568 ;    Quadring  v. 
Downs,  2  Mod.  176. 

10  Co.  Litt.  §  123;   2  Kent,  Comm.  222;  Fonda  v.  Van  Home,  15  Wend.  (N. 
Y.)  631,  30  Am.  Dec.  77. 

11  Co.  Litt.  §  123. 


318  GUARDIANS  DEFINED SELECTION  AND   APPOINTMENT.     (Ch.  11 

Guardianship  in  socage,  as  stated  above,  extended  over  the  person  of 
the  ward,  as  well  as  over  the  real  estate;  ^^^  and  it  extended  over  per- 
sonalty connected  with  the  real  estate,  but  not  over  choses  in  action 
and  other  personal  property.^ ^ 

Guardianship  in  socage  was  an  incident  of  the  feudal  system  ex- 
isting in  England  under  the  common  law  of  real  property.  It  has  fal- 
len into  disuse  there,  and  it  was  never  common  in  this  country.  In 
New  York,  and  perhaps  in  other  states,  there  is  a  somewhat  similar 
guardianship,  known  as  "guardianship  in  socage."  The  Revised  Stat- 
utes of  New  York  provide:  "Where  an  estate  in  lands  shall  become 
vested  in  an  infant,  the  guardianship  of  such  infant,  with  the  rights, 
duties,  and  powers  of  a  guardian  in  socage,  shall  belong  (1)  to  the 
father  of  the  infant;  (2)  if  there  be  no  father,  to  the  mother;  (3)  if 
there  be  no  father  or  mother,  to  the  nearest  and  eldest  relative  of  full 
age,  not  being  under  any  legal  incapacity,  and,  as  between  relatives  of 
the  same  degree  of  consanguinity,  male  shall  be  preferred."  ^*  The 
guardianship  thus  created  is  like  the  guardianship  in  socage  at  com- 
mon law,  except  that  it  continues  until  the  infant  reaches  the  age  of 
21 ;  and  relatives  who  can  inherit  from  the  infant  are  not  excluded, 
and  it  makes  no  difference  how  the  land  was  acquired.^* 


TESTAMENTARY    GUARDIANS. 

150.  By  statute,  a  father,  and  in  some  states  a  motlier,  on  Ms  death, 
may,  generally  by  will,  and  in  some  states  by  deed,  appoint 
a  guardian  for  a  minor  cMld.  Such  a  gnardiansbip  extends 
to  the  person,  and  to  the  real  and  personal  property,  of  the 
ward,  and  continues  until  the  ward's  majority. 

Testamentary  guardianship  was  created  by  the  statute  of  12  Car. 
II.  c.  24,  the  provisions  of  which  have  been  substantially  enacted  in 
many  of  the  states  in  this  country.  It  was  provided  by  that  statute 
that  the  father  of  minor  children  could  "by  deed  executed  in  his  life- 


12  Co.  Litt.  §  123;    Com.  Dig.  "Guardian,"  B;   2  Kent,  Comm.  221. 

13  Foley  V.  Mutual  Life  Ins.  Co.,  138  N.  Y.  333,  34  N.  E.  211,  20  L.  R.  A. 
620,  34  Am.  St.  Rep.  456. 

14  4  Rev.  St.  N.  y.  (Sth  Ed.)  p.  Sil8,  §  5. 

15  Foley  V.  Mutual  Life  Ins.  Co.,  138  N.  Y.  333,  34  N.  E.  211,  20  L.  R.  A. 
G20,  34  Am.  St  Rep.  456;  Fonda  v.  Van  Horne,  15  Wend.  (N.  Y.)  631,  30 
Am.  Dec.  77. 


§    150)  TESTAMENTARY   GUARDIANS.  319 

time,  or  by  his  last  will  and  testament  in  writing,"  dispose  of  their 
custody  and  tuition.  Under  this  statute,  the  father  alone  could  ap- 
point,^® and  he  could  do  so  though  himself  a  minor.  In  this  country 
the  statutes  of  the  different  states  contain  various,  but  not  uniform, 
changes.^ ^  In  some  states  the  appointment  can  only  be  made  by  will, 
and  in  some  the  mother,  after  the  death  of  the  father,  succeeds  to  his 
power,  if  she  is  unmarried.^^  It  is  sufficient  for  the  appointment  of  a 
testamentary  guardian  that  the  intention  to  appoint  is  clear,  although 
there  is  no  express  designation  as  such  in  the  will,  provided  that  the 
powers  essential  to  the  office  are  conferred.^'  The  authority  is  de- 
rived from  the  appointment,  and  requires  no  confirmation  by  the 
court,^"  nor  even  by  the  probate  of  the  will;  ^^  and,  when  such  power 
has  been  exercised  by  the  testator,  the  court  has  no  jurisdiction  to  ap- 
point a  different  guardian. ^^  By  statute,  such  appointment  is  some- 
times made  subject  to  the  probate  of  the  will,  and  also  the  approval  of 
the  court  and  the  giving  of  a  bond.  The  office  is  one  of  personal  trust, 
and  is  not  assignable.^^  Testamentary  guardianship  extends  to  the 
person,  and  to  the  real  and  personal  estate,  of  the  child,  and  it  con- 
tinues until  the  ward  arrives  at  full  age. 2*  The  statute  of  Charles  II. 
does  not  confer  upon  the  father  power  to  appoint  a  guardian  for  his 
illegitimate  child,  nor  can  he  delegate  any  such  power  to  a  third  per- 


16  See,  also,  the  Florida  statute  (Rev.  St.  1892,  §  2086);  Hernandez  v. 
Thomas,  50  Fla.  522,  39  South.  &41,  2  L.  R.  A.  (N.  S.)  203,  111  Am.  St.  Rep. 
137. 

17  In  re  Kellogg,  110  App.  Div.  472,  96  N.  Y.  Supp.  905;  Ingalls  v.  Camp- 
bell, 18  Or.  461,  24  Pac.  904.  Testamentary  guardianship  is  not  authorized 
in  Iowa.     In  re  O'Connell's  Guardianship,  102  Iowa,  355,  71  N.  W.  211. 

18  In  re  Kellogg,  110  App.  Div.  472,  96  N.  Y.  Supp.  965;  In  re  Waring's 
Will,  46  Misc.  Rep.  222,  94  N.  Y.  Supp.  82. 

18  Bridges  v.  Hales,  Mos.  108;  Miller  v.  Harris,  14  Sim.  540;  Corrigan  v. 
Kiernan,  1  Bradf.  Sur.  (N.  Y.)  208;  Southern  Marble  Co.  v.  Stegall,  90  Ga. 
236,  15  S.  E.  800;  In  re  Hawley,  104  N.  Y.  250,  10  N.  E.  352;  Balch  v.  Smith, 
12  N.  H.  437. 

20  Norris  v.  Harris,  15  Cal.  226;  Southern  Marble  Co.  v.  Stegall,  90  Ga. 
230,  15  S.  E.  806. 

21  Gilliat  V.  Gilliat,  3  Phillim.  Ecc.  222. 

22  Copp  V.  Copp,  20  N.  H.  284;    Robinson  v.  Zollinger,  9  Watts  (Pa.)  169. 

2  3  Eyre  v.  Countess  of  Shaftsbury,  2  P.  Wms.  102;  In  re  Moore,  11  Ir. 
Com.  Law,  1;   Balch  v.  Smith,  12  N.  H.  437. 

2*  In  re  Sheetz's  Estate,  6  Pa.  Dist.  R.  367.  See,  also,  In  re  Grimes'  Es- 
tate, 79  Mo.  App.  274;    In  re  Kellogg,  110  App.  Div.  472,  96  N.  Y.  Supp.  965. 


320  GUARDIANS  DEFINED SELECTION  AND   APPOINTMENT.     (Ch.  11 

son.^'  It  is  the  practice  of  the  courts  to  adopt  the  nomination  of  a 
guardian  by  a  putative  father  of  a  natural  child,  in  cases  where  he  has 
left  an  estate,  and  the  person  nominated  is  in  all  respects  proper ;  but 
this  is  simply  in  deference  to  the  wishes  of  the  deceased,  and  not  as  a 
matter  of  right  which  the  court  is  bound  to  respect.^' 

In  Texas,  it  has  lately  been  held  that  the  statutes  of  that  state  pro- 
viding for  the  continuance  in  office  of  a  guardian,  and  for  the  appoint- 
ment of  his  successor,  exclude  the  idea  of  another  being  appointed  to 
succeed  him  before  his  removal ;  and,  therefore,  that  a  person  ap- 
pointed, by  the  will  of  a  father  (or,  as  in  this  case,  a  mother),  guardi- 
an of  the  estate  of  a  minor  child,  is  not  entitled  to  letters  of  guardian- 
ship while  another  guardian,  appointed  at  the  father's  request  in  his 
lifetime,  is  qualified  to  act."' 


CHANCERY  GUARDIANS. 

151.  Conrts  of  chancery,  in  the  absence  of  statutory  limitations, 
have  jurisdiction  to  appoint  guardians  of  the  persons  and 
estates  of  infants. 


Chancery  guardians  are  appointed  by  the  court  of  chancery,  and 
in  England  constitute  the  most  important  class  of  guardians.  The  ju- 
risdiction of  chancery  over  infants  is  of  very  ancient  date.  Its  origin 
is  traced  to  the  delegation  by  the  crown  of  its  duty  to  protect  the  help- 
less, as  parens  patriae."*  The  court  of  chancery  will  not  exercise  its 
jurisdiction  unless  the  infant  has  property,""  but  this  is  often  obviated 
by  the  settlement  of  a  small  amount  on  the  child. ^"^  The  appointment 
may  be  made  when  the  child  has  no  other  guardian,  when  a  suit  is 
pending  in  which  it  is  interested,  or  upon  petition  without  suit.'^  In 
this  country,  courts  of  equity  often  retain  a  general  jurisdiction  over 


2  6  Ramsay  v.  Thompson,  71  Md.  315,  18  Atl.  592,  6  L.  R.  A.  705,  and  cases 
there  cited. 

26  Ramsay  v.  Thompson,  71  Md.  315,  18  Atl.  592,  6  L.  R.  A.  705. 

2  7  Potts  V.  Terry,  8  Tex.  Civ.  App.  394,  28  S.  W.  122. 

28  2  Fonbl.  Eq.  (5th  Ed.)  228,  note;  2  Story,  Eq.  Jur.  $  1333;  Butler  v.  Free- 
man, Amb.  301. 

28  Wellesley  v.  Dnke  of  Beaufort,  2  Russ.  1,  20. 

80  Eversley,  Dom.  Rel.  655. 

«i  Eversley,  Dom.  Rel.  655. 


§   153)  QUASI  GUARDIANS,  OR   GUARDIANS  BY  ESTOPPEL.  321 

the  persons  and  estates  of  infants,'^  though,  as  a  rule,  the  matter  of 
guardianship  is  exclusively  delegated  by  statute  to  the  probate  court 
or  other  similar  tribunal. 


STATUTE    GUARDIANS. 

152.  Guardians  of  the  persons  and  estates  of  infants  are  generally 
appointed  in  this  country  by  courts  of  special  statutory  juris- 
diction.    They  are  knoTv^n  as  "statute  guardians." 

The  probate,  surrogate's,  orphans',  ordinary's,  or  other  similar  court 
generally  has,  in  the  various  states  of  this  country,  full  statutory  ju- 
risdiction over  the  persons  and  estates  of  minors,  and  over  their 
guardianship.  Guardians  appointed  by  these  courts  are  now  gen- 
erally designated  as  "statute  guardians,"  and  form,  in  this  country,  to- 
day by  far  the  most  important  class.  Their  selection  and  appoint- 
ment, and  their  powers,  duties,  and  obligations,  are  determined  in  de- 
tail to  a  greater  or  less  degree  by  statute.  In  the  absence  of  statutory 
regulations,  the  ordinary  principles  of  law  governing  the  relations  of 
guardian  and  ward  apply.  When  an  infant  is  sole  executor,  or  is  the 
next  of  kin  to  whom  letters  of  administration  ought  to  be  granted,  the 
Probate  Division  of  the  High  Court  of  Justice  in  England  will  appoint 
a  probate  guardian  to  act  durante  minore  setate,  for  the  purpose  of 
administering  the  estate. ^^  In  this  country  the  courts  generally  have 
statutory  powers  to  select  an  administrator  to  act  in  the  infant's  place 
during  his  minority. 


QUASI   GUARDIANS,    OR  GUARDIANS   BY  ESTOPPEI*. 

153.   Where  one  xrho  has  no  right  to  do  so  assumes  to  act  as  guard- 
ian, he  may  be  made  to  account  as  guardian. 

When  one  who  has  not  been  regularly  appointed  a  guardian  assumes 
to  act  as  such,  or,  by  intermeddling,  has  taken  possession  of  an  in- 
fant's estate,  he  may,  at  the  election  of  the  infant,  be  treated  as  a 

8  2  Pom.  Eq.  Jur.  §  78;  People  v.  Wilcox,  22  Barb.  (N.  Y.)  178;  Board  ol 
Children's  Guardians  of  Marion  County  v.  Shutter,  139  Ind.  268,  34  N.  E. 
6G5,  31  L.  R.  A.  740. 

33  Eversley,  Dom.  Rel.  653;   1  Williams,  Ex'rs,  480. 

Tu'F.P.&  D.Rei..(2d  Ed.)— 21 


322  GUARDIANS  DEFINED — SELECTION  AND  APPOINTMENT.     (Ch.  11 

wrongdoer  or  as  a  guardian.'*  "A  mere  stranger  or  wrongdoer,  who 
takes  possession  of  the  property  of  an  infant,  and  receives  the  rents 
and  profits  thereof,  may,  in  equity,  be  considered  as  the  guardian  of 
the  infant,  and  may  be  compelled  to  account  as  such."  "  And,  also, 
when  a  regular  guardian  continues  to  manage  the  ward's  property  aft- 
er the  latter's  majority,  and  in  effect  continues  the  guardianship,  he 
may  be  made  to  account  according  to  the  rules  pertaining  as  between 
a  regular  guardian  and  his  ward.'^  Ordinarily,  however,  on  the  ter- 
mination of  the  guardianship,  the  relation  changes  from  that  of  guard- 
ian and  ward  to  that  of  debtor  and  creditor.'^ 

GUARDIANS   OF   PERSONS   NON   COMPOTES   MENTIS. 

154.  Generally,  by  statute,  tlie  probate  or  some  similar  court  is  griv- 
en  the  poxrer  to  appoint  a  guardian  of  the  person  and  estate 
of  persons  Tirho  are  non  compotes  mentis.  In  some  states  the 
jtoxfrer  is  extended  to  include  spendthrifts. 

The  crown,  as  parens  patriae,  had  authority  over  the  care  and  cus- 
tody of  infants ;  but  this  authority  did  not  originally  extend  to  insane 
persons  and  other  persons  non  compotes  mentis.  It  was,  however, 
conferred  on  the  crown  by  Parliament,  and  intrusted  under  the  sover- 
eign's sign  manual  to  the  Lord  Chancellor.  In  this  country  the  guard- 
ianship of  persons  who  are  non  compotes  mentis  is  wholly  regulated 
by  statute  in  the  different  states,  jurisdiction  being  generally  confer- 
red upon  the  probate  or  other  similar  court.  Guardianship  over 
spendthrifts  was  unknown  at  common  law,  but  is  not  uncommon  un- 
der statutes  in  this  country.'*  Guardianship  of  persons  non  compotes 
mentis  is  governed  by  substantially  the  same  principles  and  rules  of 
law  as  the  guardianship  of  infants. 

84Revett  V.  Harvey,  1  Sim.  &  S.  502;  Wall  v.  Stanwick,  34  Ch,  DIv.  763; 
Blomfield  v.  Eyre,  8  Beav.  250;  Zeideman  v.  Molasky,  118  Mo.  App.  lOG,  94 
S.  W.  754;  Van  Epps  v.  Van  Deusen,  4  Paige  (N.  Y.)  64,  25  Am.  Dec.  516; 
Sliennan  v.  Ballon,  8  Cow.  (N.  Y.)  304;  Pennington  v.  L'Hommedieu,  7  N. 
J.  Eq.  343 ;  Alston  v.  Alston,  34  Ala.  15 ;  Crooks  v.  Turpen,  1  B.  Mon.  (Ky.) 
183 ;  Lehmann  v.  Rothbarth,  111  111.  185 ;  Martin's  Adm'r  v.  Fielder,  82  Va. 
455,  4  S.  E.  602.  There  is  no  such  thing  as  a  guardian  de  facto.  Bell  v.  Lore, 
72  Ga.  125. 

3  5  Van  Epps  v.  Van  Deusen,  4  Paige  (N.  Y.)  64;  25  Am.  Dec.  516;  Ander- 
son's Adm'r  v.  Smith,  102  Va.  697,  48  S.  E.  29. 

8  6  Mellish  V.  Mellish,  1  Sim.  &  S.  138. 

3  7  Crowell's  Appeal,  2  Watts  (Pa.)  295;  Cunningham  v.  Cunningham,  4 
Grat  (Va.)  43. 

8  8  Post,  p.  44L 


§§   156-158)      SELECTION   AND  APPOINTMENT  BY   COURT.  323 


GUARDIANS   AD  I^ITEM. 

155.  A  gnardian  ad  litem  is  a  guardian  appointed  by  a  court  of  jus- 

tice to  prosecute  or  defend  for  an  infant  in  a  suit  to  w^hich  he 
is   a   party. 

Every  court  in  which  suit  is  brought  against  an  infant  has  the  pow- 
er to  appoint  a  person  to  defend  for  him,  when  he  has  no  guardian ; 
for,  as  an  infant  cannot  appoint  an  attorney,  he  would  otherwise  be 
without  assistance.  A  person  so  appointed  is  called  a  "guardian  ad 
litem."  His  power  and  duties,  as  the  term  implies,  are  limited  to  the 
defense  of  the  suit.^^  A  guardian  ad  litem  may  also  be  appointed  to 
sue  for  an  infant,  but  this  is  not  usual,  as  an  infant  generally  sues 
by  next  friend.* °  The  appointment  of  a  guardian  ad  litem  will  be  con- 
sidered when  we  come  to  treat  of  infants,  and  of  actions  by  and 
against  them. 

SELECTION    AND    APPOINTMENT    OF    GUARDIANS    BY    COURT. 

156.  The  selection  of  a  gnardian  by  the  court  is  discretionary.      The 

father,  or,  in  this  country,  the  mother  if  he  is  dead,  or,  if 
both  are  dead,  one  of  the  next  of  kin,  vrill  be  appointed,  un- 
less he  is  unfit,  or  the  interests  of  the  child  demand  the  ap- 
pointment of  some  one  else. 

157.  A  child  over   14   could  select  his  own  guardian  for  nurture  or 

in  socage,  at  common  law,  and  may  select  his  statute  guardian 
in  this  country,  if  the  person  selected  is  suitable. 

158.  But  the  court  \irill  not  appoint  as  guardian, 

(a)  In  England,  a  married  ivoman,  though  in  this  country  the  mar- 

riage of  a  woman  is  generally  not  regarded  as  a  disqualifica- 
tion. 

(b)  Nonresidents,  as  a  rule,  though  it  has  the  poxrer  to  do  so. 

(c)  Persons   ivhose   interests    may   be   adverse   to   those    of   the   xrard. 

In  the  selection  of  a  guardian,  the  court  has  a  liberal,*^  but  not  ar- 
bitrary,*^ discretion.     It  will  generally  respect  the  natural  claim  of 

3»  Ck).  Litt.  88b ;   Bouv.  Law  Diet.  "Guardian";  post,  p.  383. 
4  0  Post,  p.  383. 

41  In  re  Kaye,  1  Ch.  App.  387;  Ohrms  v.  Woodward,  134  Mich,  596,  96  N. 
W.  950;  Nelson  v.  Green,  22  Ark.  3U7;  State  v.  Houston,  32  La.  Ann.  1305; 
Battle  V.  Vick,  15  N.  C.  294 ;  In  re  Joiinson,  87  Iowa,  130,  54  N.  W.  69;  Craw- 
ford V.  Crawford,  91  Iowa,  744,  60  N.  W.  501. 

42  Wliite  V.  Pomeroy,  7  Barb,  (IS.  Y.)  640. 


324  GUARDIANS   DEFINED — SELECTION   AND   ArrOINTMENT.     (Ch.  11 

the  father  to  act  as  guardian  of  his  child."  An  appointment,  though 
too  informal  to  be  good  as  a  testamentary  appointment,  has  great 
weight  with  the  court  in  the  selection  of  a  guardian.**  And,  general- 
ly, the  wishes  of  a  deceased  parent  will  prevail,  in  the  absence  of  good 
reasons  to  the  contrary."  The  best  interests  of  the  infant  will  pre- 
vail, however,  against  even  the  claim  of  a  father,  when  he  is  not  a 
suitable  person.*^  In  this  country,  particularly,  the  benefit  of  the 
ward  is  the  paramount  consideration  with  the  court;  and  some  third 
person  is  often  appointed,  not  only  when  the  father  is  unfit,  but  sole- 
ly out  of  consideration  for  the  general  welfare  of  the  child. *'^  If  the 
father  is  not  living,  the  mother,  in  this  country,  will  generally  be  ap- 
pointed, unless  there  is  some  good  reason  why  she  should  not.*^  If 
the  child  is  an  orphan,  the  preference  will  be  given  to  the  next  of 
kin  as  against  strangers.**     At  common  law  an  infant  over  14  years 


43  In  re  Tully,  54  Misc.  Rep.  184,  105  N.  Y.  Supp.  858;  In  re  Galleher.  2 
Cal.  App.  364,  84  Pac.  352.  Under  Domestic  Relations  Law  (Laws  1896,  p. 
223,  c.  272)  §  51,  vesting  In  the  mottier  a  riglit  to  the  custody  of  a  child  equally 
with  the  father,  a  guardian  cannot  be  appointed  for  a  minor  on  the  father's 
petition  without  notice  to  the  mother.  In  re  Browne's  Estate,  56  Misc.  Rep. 
417,  107  N.  Y.  Supp.  1029. 

44  Hall  V.  Stork,  5  Law  J.  Exch.  97;  In  re  Kaye,  1  Ch.  App.  387;  In  re  De 
Mercellin,  24  Hun  (N.  Y.)  207.  And  see  Knott  v.  Cottee,  2  Phil.  Ch.  192,  where 
a  recommendation  in  a  will  as  to  the  custody  of  a  child  was  followed. 

4c  Bennett  v.  Byrne,  2  Barb.  Ch.  (N.  Y.).  216;  In  re  Tank's  Guardianship, 
129  Wis.  629,  109  N.  W.  565;  Oozine  v.  Horn,  1  Bradf.  Sur.  (N.  Y.)  143;  In 
re  Turner,  19  N.  J.  Eq.  433;  Badenhoof  v.  Johnson,  11  Nev.  87;  Watson  v. 
Warnock,  31  Ga.  716. 

46  In  re  Tully,  54  Misc.  Rep.  184,  105  N.  Y.  Supp.  858;  Hamerick  v.  People, 
126  111.  App.  491;  Russuer  v.  McMillan,  37  Wash.  416,  79  Pac.  988;  Ex  parte 
Mountfort,  15  Ves.  445;  Wellesley  v.  Duke  of  Beaufort,  2  Russ.  1;  Thomas 
V.  Roberts,  3  De  Gex  &  S.  758. 

47  Heinemann's  Appeal,  96  Pa.  112,  42  Am.  Rep.  532;  Jones  v.  Bowman, 
13  Wyo.  79,  77  Pac.  439,  67  L.  R.  A.  860;  Page  v.  Hodgdon,  63  N.  H.  53 ; 
Griffin  v.  Sarsfield,  2  Dem.  Sur.  (N.  Y.)  4 ;  Huie  v.  Nixon,  6  Port.  (Ala.)  77 ; 
Badenhoof  \.  Johnson.  11  Nev.  87;  Luppie  v.  Winans,  37  N.  J.  Eq.  245;  Ben- 
nett V.  Bynie,  2  Barb.  Ch.  (N.  Y.)  216;    In  re  McGrath  [1893]  1  Ch.  143. 

48  Albert  v.  Perry,  14  N.  J.  Eq.  540;  People  v.  Wilcox,  22  Barb.  (N.  Y.)  178; 
In  re  Tank's  Guardianship,  129  Wis.  629,  109  N.  W.  565 ;  Ramsay  v.  Ramsay, 
20  Wis.  507. 

4»  Johnstone  v.  Beattie,  10  Clark  &  F.  42;  Sullivan's  Case,  1  Moll.  225; 
Albert  v.  Perry,  14  N.  J.  Eq.  540;  Morehouse  v.  Cooke,  Hopk.  Ch.  (N.  Y.)  226. 
There  are  frequently  statutoiy  enactments  to  the  same  effect  In  re  Deliow's 
Estate,  1  Oal.  App.  529,  82  Pac.  558. 


§i^    156-158)      SELECTION    AND   APPOINTMENT   BY   COURT.  325 

of  age  could  select  his  guardian  by  nurture  or  in  socage ;  "*  and,  by 
statutory  enactment,  an  infant  of  14  may  generally  nominate  his  own 
guardian,  and  such  person  must  be  appointed  by  the  court,  if  suit- 
able:^^  It  is  even  held  that  the  infant  may  nominate  a  guardian  to 
supersede  one  already  appointed  by  the  court, "^  but  there  is  also  au- 
thority to  the  contrary. '^^ 

The  appointment  of  a  married  woman  as  guardian  is  held  improper 
in  England,"*  but  a  female  guardian  who  marries  may  be  reappointed 
after  a  reference  to  ascertain  whether  her  reappointment  is  for  the 
benefit  of  the  child. "^^  In  this  country  it  has  been  said  to  be  against 
the  policy  of  the  law  to  appoint  a  married  woman  as  guardian,^®  but 
by  the  weight  of  authority,  she  is  competent  to  act  in  that  capacity.'^ 
When  her  husband  is  unsuitable,  the  appointment  has  been  refused, 
on  the  ground  that  the  wife  would  be  under  his  influence.'**  A  non- 
resident will  ordinarily  not  be  appointed,  since  he  is  not  amenable  to 
the  jurisdiction  of  the  court;  °^    but   such  appointments  are  within 


60  1  Bl.  Comm.  462;  Ex  parte  Edwards,  3  Atk.  519;  Manro  v,  Ritchie,  3 
Cranch,  C.  C.  147,  Fed.  Cas.  No.  9,312 ;    Inferior  Court  v.  Cherry,  14  Ga.  594. 

61  Adams'  Appeal,  38  Conn.  304;  Dickerson  v.  Bowen,  128  Ga.  122,  57  S. 
E.  326 ;  Wirsig  v.  Scott  (Neb.)  112  N.  W.  655 ;  State  ex  rel.  Finger  v.  Rey- 
nolds, 121  Mo.  App.  699,  97  S.  W.  650 ;  Lvmt  v,  Aubens,  39  Me.  392 ;  Montgom- 
ery V.  Smith,  3  Dana  (Ky.)  599 ;  Arthurs'  Appeal,  1  Grant,  Cas.  (Pa.)  55 ;  Ses- 
sions V.  Kell,  30  Miss.  458;  Kelly  v.  Smith,  15  Ala,  687.  But  see  In  re  Tully, 
54  Misc.  Rep.  184,  105  N.  Y.  Supp.  858,  following  Ledwith  v.  Ledwith,  1  Dem. 
Sur.  (N.  Y.)  154,  and  holding  that  the  court  may  exercise  its  own  discretion, 
though  the  person  is  a  suitable  one. 

5  2  Sessions  v.  Kell,  30  Miss.  458;  Bryce  v.  W3Tin,  50  Ga.  332;  Kelly  v. 
Smith,  15  Ala.  687 ;   Montgomery  v.  Smith,  3  Dana  (Ky.)  599. 

5  3  Gray's  Appeal,  96  Pa.  243;  Ham  v.  Ham,  15  Grat  (Va.)  74;  Mauro 
V.  Ritchie,  3  Cranch,  C.  C.  147,  Fed.  Cas.  No.  9,312. 

64  In  re  Kaye,  1  Ch.  App.  387. 

66  In  re  Gornall,  1  Beav.  347 ;   Jones  v.  Powell,  9  Beav.  345. 

6  6  Holley  V.  Chamberlain,  1  Redf.  Sur.  (N.  Y.)  333,  overruled  by  In  re  Herm- 
ance,  2  Dem.  Sur.  (N.  Y.)  1 ;  married  women  having  been  made  competent  by 
statute  in  New  York. 

5  7  Beard  v.  Dean,  64  Ga.  258;  Farrer  v.  Clark,  29  Miss.  195;  Jarrett  v. 
State,  5  Gill  &  J.  (Md.)  27;  Palmer  v.  Oakley,  2  Doug.  (Mich.)  433,  47  Am. 
Dec.  41;  Goss  v.  Stone,  63  :\Iich.  319,  29  N.  W.  735;  Ex  parte  Maxwell,  19  Ind, 
88 ;    Succession  of  Gaines,  42  La.  Ann.  699,  7  South.  788. 

68  Kettletas  v.  Gardner,  1  Paige  (N.  Y.)  488;   Ex  parte  Maxwell,  19  Ind.  88. 

6  9  Logan  v.  Fairlee,  Jac.  193;  Johnstone  v.  Beattie,  10  Clark  &  F.  42,  86; 
In  re  Taylor,  3  Redf.  Sur.  (N.  Y.)  259. 


326  GUARDIANS  DEFINED — SELECTION  AND   APPOINTMENT.     (Ch.  11 

the  power  of  the  court/"  unless  contrary  to  statutory  provisions.'^ 
An  executor  or  administrator  of  an  estate  in  which  an  infant  has 
an  interest  has  been  held  not  to  be  a  proper  person,  on  the  ground 
that  his  interests  may  be  adverse  to  those  of  the  child.®^  But  the 
trustee  of  an  infant  is  a  proper  person,^ ^  unless  it  appears  that  he 
has  acted  or  may  act  to  the  infant's  prejudice.^*  The  rule  is  general 
that  the  court  will  not  appoint  a  person  whose  interests  are  or  may 
be  adverse  to  those  of  the  infant.®''  The  court  may  appoint  a  corpora- 
tion as  guardian  where  it  is  authorized  by  statute  to  act  in  that  ca- 
pacity.®" But  the  appointment  of  a  firm  designated  in  a  will  has 
been  refused.®^ 


JURISDICTION    TO    APPOINT    GUARDIAN. 

159.    A  guardian  can  only  be  appointed  by  a  court  \itithin  xrbose  ju- 
risdiction the  minor  bas  bis  residence,  or  bas  property. 

The  place  of  residence  of  an  infant  determines  the  court  which 
has  jurisdiction  to  appoint  a  guardian ;  ®^  but,  when  a  nonresident 
infant  has  property  within  the  jurisdiction,  a  guardian  may  usually 
be  appointed  by  the  court  of  the  county  where  the  property  is  sit- 
so  Daniel  V.  Newton,  8  Beav.  485;  Succession  of  Oliver,  113  La.  877,  37 
South.  862;    Berry  v.  Jolinson,  53  Me.  401. 

61  Finney  v.  State,  9  Mo.  227. 

62  Griffin  v.  Sarsfield,  2  Dem.  Sur.  (N.  Y.)  4;  Ex  parte  Crutchfield,  3  Yerg. 
(Tenn.)  336 ;    Isaacs  v.  Taylor,  3  Dana  (Ky.)  600. 

6  3  Bennett  v.  Byrne,  2  Barb.  Ch.  (N.  Y.)  216. 

«*  As  where  he  has  subordinated  the  interest  of  the  child  to  those  of  another 
cestui  que  trust.    Barnsback  v.  Dewey,  13  111.  App.  581. 

CO  In  re  Van  Beureu's  Estate  (Sur.)  13  N.  Y.  Supp.  261;  Corwin's  Appeal,  126 
Pa.  326,  19  Atl.  38;  In  re  Brien's  Estate,  58  Hun,  604,  11  N.  Y.  Supp.  522; 
In  re  Edmonson's  Estate  (Neb.)  110  N.  W.  540. 

66  Minnesota  Loan  &  Trust  Co.  v.  Beebe,  40  Minn.  7,  41  N.  W.  232,  2  L.  R. 
A.  418 ;  In  re  Cordova,  4  Redf.  Sur.  (N.  Y.)  66 ;  Ledwith  v.  Ledwith,  1  Dem. 
Sur.  (N.  Y.)  154;  Glaser  v.  Priest,  29  Mo.  App.  1;  Johnson  v.  Johnson,  88  Ky. 
275,  11  S.  W.  5;    In  re  Brien's  Estate,  58  Hun,  604,  11  N.  Y.  Supp.  522. 

6  7  De  Mazar  v.  Pybus,  4  Ves.  644. 

6  8  Brown  v.  Lynch,  2  Bradf.  Sur.  (N.  Y.)  214;  Connell  v.  Moore.  70  Kan.  88, 
78  Pac.  164,  109  Am.  St.  Rep.  408 ;  Ware  v.  Coleman,  6  J.  J.  Marsh.  (Ky.)  198 ; 
Maxsom's  Lessee  v.  Sawyer,  12  Ohio,  195 ;  Dorman  v.  Ogbourne,  16  Ala.  759; 
Darden  v.  Wyatt,  15  Ga.  414 ;  Lewis  v.  Castello,  17  Mo.  App.  593 ;  Herring 
V.  Goodson,  43  Miss.  392;  Harding  v.  Weld,  128  Mass.  587;  In  re  Brady,  10 
Idaho,  366,  79  Pac.  75;    Sears  v.  Terry,  26  Conn.  273. 


i 


§    159)  JURISDICTION   TO   APPOINT  GUARDIAN.  327 

uated.^'  Although  the  legal  domicile  be  elsewhere,  residence  in  fact 
has  been  held  sufficient  to  confer  jurisdiction.'''*  An  appointment 
made  when  the  infant  has  neither  a  residence  nor  property  is  void, 
and  may  be  attacked  collaterally;"  but,  when  the  court  has  juris- 
diction, an  appointment  can  only  be  set  aside  by  direct  proceedings 
in  the  same  court,^*  and,  although  there  was  no  personal  service  on 
the  ward,  the  appointment  cannot  be  attacked  collaterally/' 

«» Logan  V.  Fairlee,  Jac.  193;  Stephens  v.  James,  1  Mylne  &  K.  627; 
Seaverns  v.  Gerke,  3  Sa\\T.  353,  Fed.  das.  No.  12,595;  Nunn  v.  Robertson, 
80  Ark.  350,  97  S.  W.  293 ;  Clarke  v.  (Cordis,  4  Allen  (Mass.)  466;  In  re  Hub- 
bard, 82  N.  Y.  90;  Rice's  Case,  42  Mich.  528,  4  N.  W.  284;  Davis  v.  Hudson, 
29  Minn.  27,  11  N.  W.  136;  Grier  v.  Mcl^ndon,  7  Ga.  362;  Barnsback  v. 
Dewey,  13  111.  App.  581 ;   Neal  v.  Bartleson,  65  Tex.  478. 

TO  Johnstone  v.  Beattie,  10  Clark  &  F.  42;  In  re  Hubbard,  82  N.  Y.  90; 
Ross  V.  Southwestern  R.  Co.,  53  Ga.  514. 

71  Cases  cited  in  notes  68  and  69  supra. 

T 2  Grier  v.  McLendon,  7  Ga.  362;  Sears  v.  Terry,  26  Conn.  273;  People  v. 
WUcox,  22  Barb.  (N.  Y.)  178 ;  Speight  v.  Knight,  11  Ala.  461 ;  PanniU's  Adm'r 
V.  Calloway's  Committee,  78  Va.  387. 

7  3  Board  of  Children's  Guardians  of  Marion  County  v.  Shutter,  139  Ind.  268, 
34  N.  E.  665,  31  L.  R.  A.  740;  Kurtz  v.  St  Paul  &  D.  R.  Co.,  48  Minn.  339,  51 
N.  W.  221,  31  Am.  St.  Rep.  657 ;  Kurtz  v.  West  Duluth  Land  Co.,  52  Minn.  140, 
53  N.  W.  1132 ;  Appeal  of  Gibson,  154  Mass.  378,  28  N.  E.  296. 


328 


EIGHTS,  DUTIES,  AND   LIABILITIES  OF  GUARDIANS.  (Ch.  12 


CHAPTER  XII. 
RIGHTS,    DUTIES,   AND   LIABIUTIES   OF   GUARDIANS. 

160.  Guardian's  Right  to  Custody  of  Ward. 

161.  Guardian's  Right  to  Ward's  Services. 
162-106.  Maintenance  of  Ward. 

163.  Contracts. 

164.  Reimbursement  for  Support. 
165-166.  Use  of  Principal  of  Estate. 

167.  Change  of  W^ard's  Domicile  by  Guardian. 

168-179.  Management  of  Ward's  Estate. 
168-169.  Guardianship  as  a  Trust 

170.  Acts  in  Excess  of  Authority. 

171.  Degree  of  Care  Required. 

172.  Collection  and  Protection  of  Property — Actions. 
173-174.  Investments. 

175.  Care  of  Real  Estate. 

176-177.  Sale  of  Real  Estate. 

178.  Sale  of  Personal  Property. 

179.  Power  to  Execute  Instruments. 

180.  Foreign  Guardians. 
181-183,  Inventory  and  Accounts. 

184.  Compensation  of  Guardian. 

185.  Settlements  Out  of  Court. 

186.  Gifts  from  Ward  to  Guardian. 


GUARDIAN'S   RIGHT   TO    CUSTODY   OF   WARD. 

160.  The  guardian  is  ordinarily  entitled  to  the  custody  of  his  ward, 
except,  in  this  country,  as  against  the  parents.  In  all  cases 
the  courts  have  a  discretion,  and  will  award  the  custody  as 
may  be  best  for  the  interests  of  the  child. 

The  rule  of  the  English  courts  is  that  a  guardian  is  entitled  to 
the  custody  of  the  person  of  his  ward,  not  only  as  against  strangers, 
but  even  as  against  the  child's  parents.^  In  this  country  the  custo- 
dy of  the  ward  will  ordinarily  be  given  to  its  guardian,  both  as  against 
strangers  and  as  against  relations,^  with  the  exception  of  its  parents. 


1  Wright  V.  Naylor,  5  Madd.  77;  In  re  Andrews,  L.  R.  8  Q.  B.  153;  Eyre  v. 
Countess  of  Shaftsbury,  2  P.  Wms.  103. 

sColtman  v.  Hall,  31  Me.  196;  Bounell  v.  Berryhill,  2  Cart.  (Ind.)  613; 
Johns  V.  Emmert,  62  Ind.  533 ;  Ex  parte  Ralston,  R.  M.  Charlt.  (Ga.)  119. 


§  161)  guardian's  right  to  ward's  services.  329 

The  rights  of  the  parent  are  generally  conceded  by  the  courts  to 
be  superior  to  those  of  the  guardian."  The  right  to  the  ward's  cus- 
tody is  often  regulated  by  statute.  In  the  award  of  the  custody  of 
the  child's  person,  even  as  between  parent  and  guardian,  the  courts 
will  exercise  a  reasonable  discretion,  and  when  the  question  arises  as 
to  tbe  right  to  its  custody,  as  between  its  parent  and  another,*  will 
be  largely  influenced  by  the  child's  best  interests.''  If  the  child  is  of 
sufficient  discretion,  the  court  will  take  its  wishes  into  consideration." 

GUABDIAN'S  BIGHT  TO  "WARD'S  SERVICES. 

161.   A  guardian,  as  snch,  is  not  entitled,  like  a  parent,  to  his  ward's 
services  and  earnings. 

A  guardian,  as  such,  has  no  right  to  his  ward's  services,  corres- 
ponding to  the  parent's  right  to  the  services  of  his  minor  child.'' 
When  an  infant  is  Hving  with  and  supported  by  his  guardian 
as  a  member  of  his  family,  and  renders  ordinary  household  serv- 
ices, it  has  been  held  that  he  may  set  off  the  value  of  such  serv- 
ices against  the  guardian's  claim  for  maintenance.^  There  are  cases, 
however,  which  hold  the  contrary.'  The  guardian,  not  being  enti- 
tled to  the  services  of  his  ward,  cannot,  as  such,  bring  an  action  for 
loss  of  services  caused  by  a  tortious  injury,  as  for  the  seduction  of 

3  People  V.  Wilcox,  22  Barb.  (N.  y.)  178;  Wood  v.  Wood,  5  Paige  (N.  Y.) 
596,  28  Am.  Dec.  451;  Ramsay  v.  Ramsay,  20  Wis.  507;  Lord  v.  Houglj,  37 
Oal.  657.  The  guardian  is  entitled  to  his  ward's  custody  in  the  absence  of 
an  award  to  another,  and  is  not  answerable  for  false  imprisonment  in  as- 
serting his  right  thereto.  Townsend  v.  Kendall,  4  Minn.  412  (Gil.  315),  77 
Am.  Dec.  534. 

4  Ante,  p.  267. 

6  Roach  V.  Garvan,  1  Ves.  Sr.  157;  Garner  v.  Gordon,  41  Ind.  92;  Ward  v. 
Roper,  7  Humph.  (Tenn.)  Ill;  In  re  Heather  Children,  50  Mich  "^ei  15  N 
W.  487. 

«  Anon.,  2  Ves.  Sr.  374;  People  v.  Wilcox,  22  Barb.  (N.  Y.)  178. 

7  Haskell  v.  Jewell,  59  Vt.  91,  7  Atl.  545;  Zeideman  v.  Molasky,  118  Mo. 
App.  106,  94  S.  W.  754;  Bass  v.  Cook,  4  Port  (Ala.)  390;  In  re  Clark, 
36  Hun  (N.  Y.)  301;  Denison  v.  Cornwell,  17  Serg.  &  R.  (Pa.)  377;  Hayden 
V.  Stone,  1  Duv.  (Ky.)  400;  Blanchard  v.  Ilsley,  120  Mass.  487,  21  Am.  Rep.  535. 

8  PhDlips  V.  Davis,  2  Sneed  (Tenn.)  520,  62  Am.  Dec.  472 ;  Calhoun  v.  Cal- 
houn, 41  Ala.  3G9 ;  Crosby  v.  Crosby,  1  S.  C.  337.  As  to  tbe  right  to  charge 
for  ward's  support,  see  post,  p.  333. 

•Moyer  v.  Fletcher,  56  Mich.  508,  23  N.  W.  198:  Armstrong's  Heirs  v. 
Walkup,  12  Grat.  (Va.)  608. 


330  RIGHTS,  DUTIES,  AND   LIABILITIES  OF  GUARDIANS.  (Ch.  12 

a  female  ward.^"  If,  however,  the  guardian  stands  in  loco  paren- 
tis, so  that  he  has  the  same  rights  as  a  parent  would  have,  including 
the  right  to  control  the  child's  services,  he  may  maintain  such  an 
action.^  ^ 


MAINTENANCE   OF   TV ARD— CONTRACTS. 

162.  A  guardian  is  bonnd  to  maintain  Ms  xp^ard  from  tlie  income  of 

the  estate,  bnt  lie  is  not  bonnd  to  fnrnisb  support  personally, 
and  no  promise  on  his  part  xirill  be  implied,  xplthont  his  con- 
sent, to  pay  even  for  necessaries  furnished  the  yxrard. 

163.  A  guardian  cannot,  by  contract,  bind  either  the  ivard  or  his  es- 

tate. He  is  primarily  personally  liable  on  contracts,  though 
made  by  him  as  guardian,  and  on  behalf  of  the  'ward,  bnt  in 
proper  cases  he  is  entitled  to  reimbursement. 

164.  By    the    weight    of    authority,    w^hen    the    w^ard    lives    with    the 

guardian  as  a  member  of  his  family,  receiving  support,  and 
rendering  the  ordinary  services  of  a  child,  the  guardian  is 
not  entitled  to  an  allowance  for  such  support,  in  the  ab- 
sence of  an  agreement,  the  relation  in  such  case  being  quasi 
parental. 

It  is  the  duty  of  the  guardian  to  maintain  and  educate  his  ward 
in  a  manner  suitable  to  his  means,  from  the  income  of  the  ward's 
estate.^^  Although  the  ward's  father  is  living,  the  guardian  should 
provide  for  his  maintenance  out  of  his  estate,  provided  the  father 
is  unable  to  do  so,  and  a  court  of  equity  will  order  an  allowance  for 
such  maintenance.^' 

A  guardian  is  under  no  personal  obligation  to  support  his  ward, 
and  therefore  no  promise  on  his  part  will  be  implied,  as  a  matter 
of  law,  to  pay  even  for  his  ward's  necessaries.  "A  guardian  is  not  re- 
sponsible, either  personally  or  in  his  fiduciary  character,  for  necessaries 

10  Blanchard  v.  llsley,  120  Mass.  4S7,  21  Am.  Rep.  535. 

11  Ferusler  v.  Moyer,  3  Watts  &  S.  (Pa.)  41(3,  39  Am.  Dec.  33.  See  Bartley 
V.  Ricbtmyer,  4  N.  Y.  38,  53  Am.  Dec.  338 ;  aute,  p.  296. 

12  Reading  v.  Wilson,  38  N.  J.  Eq.  446;  Preble  v.  Longfellow,  48  Me.  279, 
77  Am.  Dec.  227 ;  Roscoe  v.  McDonald,  101  Mich.  313,  59  N.  W.  603,  and  cases 
hereafter  cited. 

13  Errat  v.  Barlow,  14  Ves.  202;  Ex  parte  Mountfort,  15  Ves.  449;  Clark  v. 
Montgomery,  23  Barb.  (N.  Y.)  464;  Beasley  v.  Watson,  41  Ala.  234;  Waldrom 
V.  Waldrom,  76  Ala.  285 ;  State  v.  Martin,  18  Mo.  App.  468;  Newport  v.  Cook, 
2  Ashm.  (Pa.)  332. 


§§    162-164:)  MAINTENANCE   OF   WARD.  331 

furnished  his  ward  without  his  consent,  express  or  implied."  ^*  If  a 
guardian  should  willfully  withhold  from  his  ward  necessaries  suit- 
ed to  his  fortune  and  condition  in  life,  equity,  or  the  probate  or  oth- 
er court  having  jurisdiction  of  the  guardianship,  would  compel  him 
to  supply  them,  and  if  a  stranger,  ad  interim,  should  furnish  them, 
he  would  be  reimbursed  out  of  the  ward's  fortune ;  but  no  one  could 
furnish  even  necessaries  without  the  guardian's  consent,  and  main- 
tain an  action  against  the  guardian  therefor.  Where,  therefore,  a 
guardian  refuses  or  neglects  to  furnish  his  ward  a  support,  "the  rem- 
edy is  by  application  to  the  court,  which  will  dismiss  the  guardian 
for  neglect  of  duty,  or  the  infant  may  himself  purchase  necessaries ; 
or,  if  of  such  a  tender  age  that  he  cannot  contract  himself,  a  third 
person  may  supply  his  wants.  But  then  the  guardian  is  not  liable, 
but  the  infant.  In  that  case  suit  must  be  brought  against  the  infant, 
who  can  appear  by  guardian,  and  not  against  the  guardian  himself; 
and  the  judgment,  when  rendered,  is  against  the  infant,  and  execu- 
tion can  only  be  had  of  the  estate  of  the  infant."  ^' 

Clearly,  no  consent  on  the  part  of  the  guardian  can  be  implied 
where  necessaries  are  furnished  without  his  knowledge,  nor  can  his 
consent  be  implied,  even  where  he  has  such  knowledge,  if  the  cir- 
cumstances are  such  that  he  cannot  be  held  to  know  that  the  par- 
ty furnishing  them  believes  he  consents.  If  his  knowledge  and  ac- 
quiescence are  as  consistent  with  want  of  consent  as  with  consent, 
his  consent  will  not  be  implied.^' 


14  Barnum  v.  Frost's  Adm'r,  17  Grat.  (Va.)  398;  Pinnell  v.  Hinkle,  54  W. 
Va.  110,  46  S.  E.  171 ;  Overton  v.  Beavers,  19  Ark,  623,  70  Am.  Dec.  610 ; 
Edmunds  v.  Davis,  1  Hill  (S.  C.)  279;  Tucker  v.  McKee,  1  Bailey  (S.  C.) 
344;  Call  v.  Ward,  4  Watts  &  S.  (Pa.)  118,  39  Am.  Dec.  &4;  Bredin  v.  Dwen, 
2  Watts  (Pa.)  95;  Peufield  v.  Savage,  2  Conn.  387;  McDaniel  v.  Mann,  25 
Tex.  101 ;  Gwaltney  v.  Cannon,  31  Ind.  227 ;  State  v.  Cook,  34  N.  C.  07 ;  Spring 
V.  Woodworth,  4  Allen  (Mass.)  326.  A  guardian  has  the  same  right  as  a 
parent  to  decide  what  are  necessaries,  and  any  one  supplying  the  child  does 
so  at  his  peril.  Nicholson  v.  Spencer,  11  Ga.  607 ; .  Kraker  v.  Byrum,  13 
Rich.  Law  (S.  C.)  163;  McKanna  v.  Merry,  61  111.  177. 

10  Call  V.  Ward,  4  Watts  &  S.  (Pa.)  118,  39  Am.  Dec.  64. 

16  Call  v.  Ward,  4  Watts  &  S.  (Pa.)  118,  39  Am.  Dec.  64;  Edmunds  v.  Davis, 
1  Hill  (S.  C.)  279;  Overton  v.  Beavers,  19  Ark.  623,  70  Am.  Dec.  610.  Where, 
on  a  father's  refusal  to  support  his  child,  a  relative  furnished  support,  it  was 
held  that  the  child's  guardian,  who  had  no  knowledge  of  the  father's  re- 
fusal, was  not  liable  to  the  relative  for  such  support,  though  he  had  sufficient 
funds  belonging  to  the  ward.    Turner  v.  Flagg,  6  Ind.  App.  563,  33  N.  E.  1104. 


332  RIGHTS,  DUTIES,  AND   LIABILITIES  OF   GUARDIANS.  (Ch.  12 

The  guardian's  authority  is  limited  to  supplying  the  needs  of 
the  ward  out  of  the  income  of  the  estate.  He  cannot,  by  contract, 
render  the  ward  personally  liable  even  for  necessaries,  nor  can  he 
bind  the  ward's  estate."  On  contracts  made  by  him,  the  guardian 
renders  himself  personally  liable,  though  he  may  expressly  contract 
as  guardian;**  but  in  proper  cases  he  is  entitled  to  reimburse- 
ment out  of  the  ward's  estate.**  In  a  Massachusetts  case  a  guardian 
gave  a  promissory  note,  as  guardian,  to  effect  the  release  of  his  ward 
from  an  execution  against  the  person,  and  it  was  held  that  he  was 
personally  liable  thereon.  In  answer  to  an  objection  that  the  defend- 
ant guardian  was  not  personally  liable,  as  he  contracted  only  as  guard- 
ian, the  court  said:  "As  an  administrator  cannot,  by  his  promise, 
bind  the  estate  of  his  intestate,  so  neither  can  the  guardian,  by  his 
contract,  bind  the  person  or  estate  of  his  ward.  Unless,  therefore,  the 
defendant  is  liable  to  pay  this  note,  the  plaintiff  has  no  remedy.  But  we 
are  satisfied  that  the  defendant  is  liable.  It  is  his  promise,  made 
on  a  sufficient  consideration;  and  although,  in  the  note,  he  states 
that  he  promises  as  guardian,  yet  he  is  personally  bound, — his  trust 
being  inserted  only  to  entitle  himself  to  indemnity  from  his  ward, 
with  which  the  plaintiff  has  no  concern."  ^°  When  a  guardian  in- 
curs liability  in  excess  of  the  estate,  and  fails  to  limit  his  liability, 
he  is  personally  liable  for  the  excess.^* 

A  guardian  cannot  exceed  the  income  of  the  estate  in  the  main- 
tenance  of  his   ward,   without   leave   of  court.^^     "When   a  guard- 

17  Jones  V.  Brewer,  1  Pick.  (Mass.)  314;  Fidelity  &  Deposit  Ck).  v.  M.  Rich 
&  Bros.,  122  Ga.  506,  50  S.  E.  338;  Forster  v.  Fuller,  6  Mass.  58,  4  Am.  Dec. 
87;  Massachusetts  General  Hospital  v.  Fairbanks,  132  Mass.  414;  Reading 
V.  Wilson,  38  N.  J.  Eq.  446 ;  Tenney  v.  Evans,  14  N.  H.  343,  40  Am.  Dec.  194 ; 
Sperry  v.  Fanning,  80  111.  371 ;  State  v.  Clark,  16  Ind.  97 ;  Brown  v.  Grant,  2S> 
W.  Va.  117,  11  S.  E.  900;  Lusk  v.  Patterson,  2  Colo.  App.  306,  30  Pac.  253. 

18  Forster  v.  Fuller,  6  Mass.  58,  4  Am.  Dec.  87;  Thacher  v.  Dinsmore,  5 
Mass.  299,  4  Am.  Dec.  61;  Rollins  v.  Marsh,  128  Mass.  116;  Simms  v.  Norris, 
5  Ala.  42;  Sperry  v.  Fanning,  80  111.  371;  Hunt  v.  Maldonado,  89  Cal.  036, 
27  Pac.  56;  McNabb  v.  Clipp,  5  Ind.  App.  204,  31  N.  E.  858;  Lewis  v.  Ed- 
wards, 44  Ind.  333.  His  promise  is  not  within  the  statute  of  frauds,  and 
need  not  be  in  writing.  Roche  v.  Chaplin,  1  Bailey  (S.  C.)  419;  McNabb  v. 
Clipp,  5  Ind.  App.  204,  31  N.  E.  85a 

19  Post,  p.  333. 

20  Forster  v.  Fuller,  6  Mass.  58,  4  Am.  Dec.  87. 

21  Hutchinson  v.  Hutchinson,  19  Vt.  437;  Broadus  v.  Rosson,  3  Leigh 
(Va.)  12. 

2  2  Hudson  V.  Newton,  83  Ark.  223,  103  S.  W.  170;  Fidelity  Trust  Co.  v. 
Butler,  91  S.  W.  676,  28  Ky.  Law  Rep.  1268. 


§§    162-164)  MAINTENANCE   OF   WARD.  333 

ian  finds  that  the  income  of  the  ward's  estate  is  not  sufficient 
for  his  maintenance,  it  is  his  duty  to  submit  the  whole  matter  to 
the  consideration  of  the  court,  and  to  act  under  its  directions.  If 
he  proceeds  otherwise,  he  acts  upon  his  own  responsibility."  ^^  It 
has  been  held  that  a  guardian  has  no  authority  to  make  advances 
from  his  own  means  for  the  maintenance  of  his  ward,  and  that  where 
he  does  so  he  cannot  recover  the  amount  advanced,  from  the  ward, 
after  the  latter  attains  his  majorily.^*  This,  however,  cannot  pre- 
vent a  guardian  from  advancing  the  means  necessary  to  support  the 
ward,  and  claiming  to  be  reimbursed  out  of  the  estate  of  his  ward 
which  subsequently  comes  into  his  hands.  Reimbursement  will  be 
allowed  in  a  proper  case.^° 

By  the  weight  of  authority,  when  a  ward  is  living  with  his  guardian 
as  a  member  of  his  family  receiving  support  on  the  one  hand  and 
rendering  household  services  on  the  other  it  will  be  assumed  in  the 
absence  of  evidence  to  the  contrary  that  they  are  living  in  the  rela- 
tion of  parent  and  child ;  and  the  guardian  cannot  under  such  cir- 
cumstances charge  the  ward's  estate  for  maintenance.  Nor  of 
course  under  such  circumstances  could  the  ward  recover  for  his 
services.  "Where  the  family  relation  exists  whether  natural  or  as- 
sumed, there  is,  in  the  absence  of  an  express  agreement,  or  circum- 
stances from  which  an  agreement  may  be  fairly  inferred,  no  implied 
obligation  to  pay  for  board,  on  the  one  hand,  or  for  work,  on  the 
other."  ^'    There  are  many  cases,  however,  which  do  not  support  this 

23  Patton  V.  Thompson,  55  N.  C.  411,  G7  Am.  Dec.  222.  And  see  post,  pp. 
334,  344,  and  cases  there  cited. 

2*  Prdale  v.  Longfellow,  48  Me.  279,  77  Am.  Dec.  227;  In  re  Boyes'  Estate, 
151  Cal.  143,  90  Pac.  454. 

2  8  Patton  V.  Thompson,  55  N.  C.  411,  (57  Am.  Dec.  222;  Johnston  v.  Coleman, 
56  N.  C.  203;  Withers  v.  Hickman,  6  B.  Mon.  (Ky.)  292;  Gott  v.  Gulp,  45 
Mich.  265,  7  N.  W.  767 ;  In  re  Boyes  Estate,  151  Cal.  143,  90  Pac.  454 ;  Speer 
V.  Tinsley,  55  Ga.  89;  In  re  Ward,  49  Misc.  Rep.  181,  98  N.  Y.  Supp.  923; 
Gaspard  v.  Ooco,  116  La.  1006,  41  South.  326;  DufEy  v.  Williams,  133  N.  C. 
195,  45  S.  E.  548.  But  see  Logan  v.  Gay  (Tex.  Civ.  App.)  87  S.  W.  852,  hold- 
ing that  failure  to  procure  an  order  of  court  precedent  to  expenditure  can- 
not be  remedied  by  an  order  nunc  pro  tunc. 

2  8  Doan  V.  Dow,  8  Ind.  App.  324,  35  N.  E.  709.  And  see  Webster  v.  Wads- 
worth,  44  Ind.  283;  Abrams  v.  United  States  Fidelity  &  Guaranty  Co.,  127 
Wis.  579,  106  N.  W.  1091;  Mulhern  v.  McDavitt,  16  Gray  (Mass.)  404;  Folger 
V.  Heidel,  60  Mo.  285;  Douglas'  Appeal,  82  Pa.  169;  Hortou's  Appeal,  94 
Pa.  St.  62.  In  Otis  v.  Hall,  117  N.  Y.  131,  22  N.  E.  563,  on  an  accounting  by 
a  guardian,  it  appeared  that  having  no  children  of  his  own,  he  had  told  the 


334  RIGHTS,  DUTIES,  AND   LIABILITIES  OF  GUARDIANS.  (Ch.  12" 

view,  but  which  hold  that  a  guardian  who  takes  his  ward  into  his 
family  to  Hve  is  entitled  to  reasonable  compensation  for  board  and 
clothing  furnished,  though  no  express  agreement  to  charge  and  to 
pay  therefor  is  shown,  and  though  the  ward  assists  in  the  perform- 
ance of  household  duties.^^ 


SAME— USE    OF   PRINCIPAL    OF   ESTATE. 

165.  The  guardian  is  restricted  to  the  use  of  the  income  of  the  es- 

tate in  the  maintenance  and  education  of  the  \irard,  unless  he 
has  obtained  leave  of  the  court  to  use  the  principal. 

166.  Such  leave  -will  be  granted  in  a  case  of  necessity,  or  -where  the 

advantage  to  the  ivard  clearly  demands  it.  And  the  court 
may  approve  such  use  by  the  guardian,  without  previous  ap- 
plication for  leave,  w^here  the  court  ivould  have  authorized 
it   if  application  had  been   made. 

In  the  maintenance  of  the  ward  the  guardian  is  ordinarily  author- 
ized to  use  only  the  income  of  the  estate. ^^  He  cannot  break  in  upon 
the  principal  without  the  sanction  of  the  court.     If  necessary,  the 

stepfather  of  his  ward  that  he  would  take  the  child  into  his  family,  and 
bring  him  up  as  his  own ;  that  he  would  collect  certain  pension  money  due 
the  ward,  and  pay  it  over  to  him,  with  interest,  when  he  became  of  age;  that, 
upon  this  understanding,  he  was  appointed  guardian  of  the  child,  took  him 
into  his  family,  and  always  spoke  of  him  as  his  child,  saying  that  he  had 
adopted  him.  The  ward  lived  with  him,  and  did  the  usual  work  of  the  farm. 
It  was  held  that  the  guardian  stood  in  loco  parentis,  and  was  not  entitled  to 
any  allowance  for  maintenance  of  the  ward.  "It  is  well  settled,"  said  the 
court,  "that  where  parties  sustain  the  relation  of  parent  and  child,  either  by 
natm'e  or  adoption,  the  former,  in  the  absence  of  an  express  promise,  cannot 
be  required  to  pay  for  services  rendered  by  the  child,  nor  the  latter  be  obliged 
to  pay  for  maintenance." 

2  7  Moyer  v.  Fletcher,  56  Mich.  5C8,  23  N.  W.  198.  And  see  Armstrong's 
Heirs  v.  Walkup,  12  Grat.  (Va.)  COS;  Pratt's  Adm'r  v.  Baker,  56  Vt.  70; 
Rawson  v.  Corbett,  43  111.  App.  127 ;  Pyatt  v.  Pyatt,  46  N.  J  Eq.  285,  18  Atl. 
1048;  Jacobia  v.  Terry,  92  Mich.  275,  52  N.  W.  629.  In  some  of  the  cases 
cited,  there  were  peculiar  circumstances  which  may  be  regarded  as  dis- 
tinguishing them  from  Doan  v.  Dow,  and  other  cases  cited  in  note  26,  supra 
so  that  they  are  not  against  the  proposition  to  which  those  cases  are  cited. 
Thus,  in  Pyatt  v.  Pyatt,  46  N.  J.  Eq.  2S5,  18  Atl.  1048,  the  guardian  used  the 
ward's  money  to  support  the  ward.  This  shows  an  intention  to  charge  the 
ivard.  And  compare  In  re  Livernois'  Estate,  78  Mich.  332,  44  N.  W.  279,  with 
Aloyer  v,  Fletcher,  56  Mich.  508,  23  N.  W.  lOa 

»»  Ante,  p.  332. 


§§    165-166)  MAINTENANCE    OF   WARD.  335 

court  will  authorize  such  an  expenditure,^®  but  the  guardian  must 
apply  to  the  court,  and,  if  he  assumes  to  judge  of  the  necessity  him- 
self, he  does  so  at  his  own  risk,  and  on  his  own  responsibility.'* 
Such  a  rule  as  this  is  necessary  to  protect  the  property  of  the  ward, 
and  this  is  its  object.  "A  guardian,"  said  the  Illinois  court,  "will 
not  be  permitted  to  expend  upon  the  maintenance  and  education  of 
his  ward  more  than  the  income  of  the  estate,  without  the  sanction  of 
the  court.  The  court  itself,  on  an  application,  proper  as  to  time, 
would  proceed  with  the  utmost  degree  of  caution,  and  would  with- 
hold its  sanction,  except  in  a  case  of  strong  necessity  or  advantage 
to  the  ward,  very  clearly  made  out.  In  a  case  where  the  ward  had 
considerable  expectancies,  or  his  estate  had  not  yet  been  reduced  to 
possession,  or  he  was  likely  to  suffer  for  the  common  necessaries  of 
life,  or,  exhibiting  fine  talents,  it  was  desirable  to  expend  his  small  es- 
tate in  his  education,  with  a  view  to  his  future  advancement  in  life; 
in  these  and  similar  instances  of  necessity  or  advantage  to  the  ward, 
the  court  would  authorize  the  expenditure  of  the  capital  of  his  es- 
tate," «^  The  ward's  real  property  cannot  be  sold  to  provide  for  main- 
tenance without  leave  of  court  first  obtained.'^  Nor  can  the  pro- 
ceeds of  real  estate  sold  for  reinvestment  be  so  used.'^ 

Though  a  guardian  always   intrenches  upon  the  principal   of  his 
ward's  estate  at  his  own  peril,  the  fact  that  he  does  so  does  not  nec- 


28vmard  V.  Robert,  2  Strob.  Eq.  (S.  C.)  40,  49  Am.  Dec.  654;  Hudson  v. 
Newton,  83  Ark.  223,  103  S.  W.  170;  Harvey  v.  Harvey,  2  P.  Wms.  21;  In  re 
Bostwick,  4  Johns.  Ch.  (N.  Y.)  100;  Roseborough  v.  Roseborough,  3  Baxt 
(Tenn.)  314;  Newport  v.  Cook,  2  Ashm.  (Pa.)  332;  Withers  v.  Hickman,  6  B. 
Mon.  (Ky.)  292.  See,  also,  Com.  v.  Lee,  120  Ky.  433,  86  S.  W.  990,  89  S.  W. 
731. 

sovillard  v.  Robert,  2  Strob.  Eq.  (S.  C.)  405,  49  Am.  Dec.  654;  Walker  v. 
Wetherell,  6  Ves.  473;  Lee  v.  Brown,  4  Ves.  362,  369;  In  re  Bostwick,  4 
Johns.  Ch.  (N.  Y.)  100;  Davis  v.  Harkness,  1  Oilman  (111.)  173,  41  Am.  Dec. 
184 ;  Beeler  v.  Dunn,  3  Head  (Tenn.)  87,  75  Am.  Dec.  761 ;  Owens  v.  Pearce, 
10  Lea  (Tenn.)  45;  Phillips  v.  Davis,  2  Sneed  (Tenn.)  520,  62  Am.  Dec.  472; 
State  V.  Clark,  16  Ind.  97 ;  Dowling  v.  Feeley,  72  Ga.  557 ;  McDowell  v.  Cald- 
well, 2  McCord,  Eq.  (S.  C.)  43,  16  Am.  Dec.  635;  Myers  v.  Wade,  6  Rand. 
(Va.)  444;  Rinker  v.  Streit,  33  Grat.  (Va.)  663;  Johnston  v.  Coleman,  56  N.  C. 
290;  Gilbert  v.  McEachen,  38  Miss.  409. 

31  Villard  v.  Robert,  2  Strob,  Eq.  (S.  C.)  40,  49  Am.  Dec.  654;  Com.  v.  Lee, 
120  Ky.  433,  80  S.  W.  990,  89  S.  W.  731. 

3  2  Fidelity  Trust  Co.  v.  Butler,  91  S.  W.  676,  28  Ky.  Law  Rep.  1268.  See, 
also,  post,  p.  356. 

«3  Strong  V.  Moe,  8  Allen  (Mass.)  125 ;  Rinker  v.  Streit,  33  Grat.  (Va.)  663. 


336  RIGHTS,  DUTIES,  AND   LIABILITIES  OP   GUARDIANS.  (Cll.  12 

essarily  bar  him  from  an  allowance  therefor.  The  rule,  on  the  con- 
trary, is  well  established  that  the  court  will  approve  such  a  use  of  the 
principal  by  the  guardian,  without  a  previous  application  for  leave 
of  the  court,  where  it  is  clear  that  the  court  would  have  authorized 
it  if  application  had  been  made.'* 


CHANGE   OF   WARD'S    DOMICILE   BT   GUARDIAN. 

167.  A  natural  guardian  can  change  his  ^irard's  domicile.  Other 
guardians  can  change  the  municipal  domicile,  but,  by  the 
iveight  of  authority,  they  cannot  change  the  state  or  national 
domicile. 

There  is  considerable  conflict  in  the  authorities  as  to  the  power  of  a 
guardian  to  change  the  domicile  of  his  ward.  In  England  it  is  held 
that,  where  the  guardian  is  also  a  parent,  the  domicile,  according  to 
the  rule  as  between  parent  and  child,  follows  that  of  the  parent,  al- 
though the  child's  rights  of  succession  to  property  may  be  thereby 
altered  to  his  prejudice.^**  It  has  been  doubted  whether  a  guardian 
who  is  not  a  parent  can  change  the  ward's  domicile,  but  the  question 
does  not  seem  to  have  been  passed  upon  by  the  English  courts.^^  In 
this  country  the  rule  is  uniform,  as  in  England,  that  a  natural  guard- 
ian may  in  good  faith  change  his  ward's  domicile  from  one  state  or 
county  to  another.^''  In  a  late  Iowa  case  it  was  held  that  the  pa- 
ternal grandfather  of  an  orphan  child,  being  the  child's  natural 
guardian,  could  change  his  domicile  to  another  state,'* 

84  Lee  V.  Brown,  4  Ves.  362;  Prince  v.  Hine,  26  Beav.  634;  In  re  Boyes 
Estate,  151  Cal.  143,  90  Pac.  454;  Browne  v.  Bedford,  4  Dem.  Sur,  (N.  Y.) 
304 ;  Jarret  v.  Andrews,  7  Bush  (Ky.)  312 ;  Barton  v.  Bowen,  27  Grat.  (Va.) 
849;  Weathersbee  v.  Blanton,  31  S.  C.  604,  9  S.  E.  817;  Calhoun  v.  Calhoun, 
41  Ala.  3G9;  Itoseborough  v.  Roseborough,  3  Baxt.  (Teun.)  314;  Long  v.  Nor- 
coni,  37  N.  C.  354 ;  Bellamy  v.  Thornton,  103  Ala.  404,  15  South.  831 ;  Mauplu's 
Ex'r  V.  Duhiuy's  Devisees,  5  Dana  (Ky.)  589,  30  Am.  Dec.  699. 

3  5  Potiuger  v.  Wightman,  3  Mer.  67;  Johnstone  v.  Beattie,  10  Clark  &  F.  42. 

3  6  Eversley,  Dom.  Rel.  692;  Dicey,  Dom.  loO;  Jac.  Doni.  §  254. 

8  7  Jac.  Dom.  §  260;  Holyoke  v.  Haskins,  5  Pick.  (Mass.)  20,  16  Am.  Dec. 
372;  Pedan  v.  Robb's  Adm'r,  8  Ohio,  227;  Matter  of  Kiernan,  38  Misc.  Rop. 
394,  77  N.  Y.  Supp.  924;  Lamar  v.  Micou,  112  U.  S.  452,  5  Sup.  Ct.  221,  28 
L.  Ed.  751 ;  In  re  Benton,  92  Iowa,  202,  60  N.  W,  614,  54  Am.  St.  Rep.  546 ; 
ante,  p.  331. 

8  8  In  re  Benton,  92  Iowa,  202,  60  N.  W.  614,  54  Am.  St  Rep,  546.  But  see 
Marheiueke  v.  Grothaus,  72  Mo.  204. 


§    1G7)  CHANGE    OF   WARD'S    DOMICILE    BY    GUARDIAN.  337 

It  seems  also  to  be  the  uniform  rule  in  this  country  that  guardians, 
other  than  natural  guardians,  may  change  the  municipal  domicile  of 
the  ward;  that  is,  that  they  may  change  it  from  one  place  to  another 
in  the  same  state.  It  was  said  in  a  New  York  case :  "In  the  pres- 
ent instance  the  residence  of  the  infant  has  been  changed  from  one 
county  to  another,  but  still  has  been  retained  under  the  sovereignty  of 
the  same  laws.  This,  I  have  no  doubt,  is  completely  within  the 
scope  of  the  guardian's  authority.  No  rights  are  impaired  or  af- 
fected by  the  act,  the  jurisdiction  of  the  state  is  preserved,  and  no 
other  consequence  flows  from  the  change  of  residence  than  the  sub- 
stitution of  one  officer  in  the  place  of  another, — a  result  entirely  con- 
formable to  those  purposes  of  convenience  contemplated  by  the  stat- 
ute in  regulating  the  appointment  of  a  guardian  by  the  surrogate  of 
the  county  where  the  infant  resides."  ^®  Whether  or  not  a  guardian, 
who  is  not  a  natural  guardian,  has  the  power  to  change  his  ward's 
domicile  from  one  state  or  county  to  another,  is  a  question  upon 
which  the  authorities  are  in  direct  conflict.  By  the  weight  of  au- 
thority, it  seems,  they  have  no  such  power.*" 

In  all  cases,  in  the  absence  of  statutory  restrictions  on  its  power,  a 
court  of  chancery  has  the  power  to  restrain  the  removal  of  a  child, 
where  its  interests  will  be  injuriously  affected.  The  court,  as  the 
protector  of  infants,  has  this  power,  even  as  against  a  natural  guard- 
ian, though  it  must  be  a  very  extreme  or  special  case  to  induce  it  tc 
interfere.*^     In  the  case  of  testamentary,  chancery,  or  statute  guard 


38  Ex  parte  Bartlett,  4  Bradf,  Sur.  (N.  T.)  221.  And  see  Jac.  I>om.  §  257; 
Kirkland  v.  Whately,  4  Allen  (Mass.)  462;  Lamar  v.  Micou,  112  U.  S.  452,  5 
Sup.  Ct.  221,  28  L.  Ed..  751 ;  Anderson  v.  Anderson's  Estate,  42  Vt.  350,  1  Am. 
Rep.  334.  But  the  domicile  of  the  guardian  is  not  necessarily  that  of  the 
ward.     School  Directors  v.  James,  2  Watts  &  S.  (Pa.)  568,  37  Am.  Dec.  525. 

*o  Daniel  v.  Hill,  52  Ala.  430;  Mears  v.  Sinclair,  1  W.  Va.  185;  Ex  parte 
Bartlett,  4  Bradf.  Sur.  (N.  Y.)  221;  Seiter  v.  Straub,  1  Dem,  Sur.  (N.  Y.)  264; 
School  Directors  v.  James,  2  Watts  &  S.  (Pa.)  568,  37  Am.  Dec.  525 ;  Wilkins' 
Guardian,  146  Pa.  585,  23  Atl.  325 ;  Lamar  v.  Micou,  112  U.  S.  452,  5  Sup.  Ct. 
221,  28  L.  Ed.  751.  But  see  Pedan  v.  Robb's  Adm'r,  8  Ohio,  227;  Townsend 
V.  Kendall,  4  Minn.  412  (Gil.  315),  77  Am.  Dec.  534;  Wood  v.  Wood,  5  Paige 
(N.  Y.)  596,  28  Am.  Dec.  451;  White  v.  Howard,  52  Barb.  (N.  Y.)  294;  Wheeler 
V.  Hollis,  19  Tex.  522,  70  Am.  Dec.  363;  In  re  Afflick's  Estate,  3  MacArthur 
(D.  C.)  95. 

41  Creuze  v.  Hunter,  2  Cox,  Ch.  242;  De  Manneville  v.  De  Manneville,  10 
Ves.  52;  Wellesley  v,  Wellesley,  1  Dow.  &  C.  152;  Wood  v.  Wood,  5  Paige 
(N.  Y.)  596,  28  Am.  Dec.  451. 

TirF.P.&  D.Rei..(2d  Ed.)— 22 


338  RIGHTS,  DUTIES,  AND   LIABILITIES  OF  GUARDIANS.  (Ch.  12 

ians,  it  will  not  hesitate  to  interfere  where  its  interference  is  neces- 
sary for  the  child's  protection.*' 


MANAGEMENT    OF   ESTATE— GUARDIANSHIP   AS   A   TRUST. 

168.  A  guardian  is  a  trustee,  and  therefore— 

(a)    He  cannot  reap  any  benefit  from  the  use  of  his  xrard's  property, 
(h)    He   cannot  purchase  at  a   sale   of  his  trard's  property, 
(c)    He  cannot  sell  his  OTvn.  property  to  his  Tvard. 

169.  The   Tcrard  has   all   the   rights,   as    against   the    guardian,    that   a 

cestui  que  trust  has  against  the  trustee.      And  therefore— 

(a)  He  may  ratify  the  \iinrongful  use  of  his  property  by  the  guard- 

ian, and   claim  all  profits  arising  therefrom,   or  repudiate  the 
transaction  and  hold  the  guardian  to  account. 

(b)  He  may  repudiate  purchases  of  his  real  estate  by  his  guardian, 

and  claim  a  resulting  trust. 

(c)  He  may  trace   and  reclaim   personal  property   converted   by  his 

guardian,  when  it  can  be  identified. 

The  relation  of  guardian  and  ward  is  that  of  trustee  and  cestui  que 
trust.*^  Whenever  the  guardian  makes  use  of  the  ward's  property 
with  the  object  of  reaping  a  personal  advantage,  or  does  any  act 
which  would  amount  to  a  breach  of  trust,  either  in  fact  or  in  law, 
the  ward,  on  attaining  his  majority,  may  either  ratify  the  transac- 
tion, and  take  any  profit  arising  from  it,  or  repudiate  it,  and  require 
the  guardian  to  account.** 

A  guardian  should  not  mingle  the  ward's  funds  with  his  own,  but 
should  deposit  moneys  in  bank  in  a  separate  account.     All  the  au- 


*2  Wood  V.  Wood,  5  Paige  (N.  Y.)  596,  28  Am.  Dec.  451. 

<3  1  Story,  Eq.  Jur.  §  317;  2  Pom.  Eq.  Jur.  961;  Mathew  v.  Brise,  14  Beav. 
341;  Duke  of  Beaufort  v.  Berty,  1  P.  Wms.  703;  Gilbert  v.  Schwenck,  14 
Mees.  &  W.  4S8;  Wall  v.  Stanwick,  34  Ch.  Div.  763;  In  re  Toman's  restate, 
110  111.  App.  135;  W'hite  v.  Parker,  8  Barb.  (N.  Y.)  48;  Pepper  v.  Stone,  lu  Vt. 
427;  Isaacs  v.  Taylor,  3  Dana  (Ky.)  600. 

44  2  Kent,  Comm.  229 ;  Docker  v.  Somes,  2  Mylne  &  K.  655 ;  Seguin's  Ap- 
peal, 103  Pa.  139;  White  v.  Parker,  8  Barb.  (N.  Y.)  48;  Kyle  v.  Barnett,  17 
Ala.  306 ;  Kennaird  v.  Adams,  11  B.  Mon.  (Ky.)  102 ;  Sparhawk  v.  Allen,  21 
N.  H.  9 ;  Heard  v.  Daniel,  26  Miss.  451 ;  Chorpenning's  Appeal,  32  Pa.  315, 
72  Am.  Dec.  789.  Where  a  duly  recorded  mortgage  was  assigned  to  a  guard- 
ian, who  thereafter,  as  agent  of  a  third  party,  negotiated  a  loan  to  the  mort- 
gagors for  a  payment  on  the  mortgage,  receiving  as  security  another  mortgage 
on  the  same  land,  he  had  no  authority  to  postpone  his  security  as  guardian 
to  the  second  mortgage.    Covey  v,  Leslie,  144  Mich.  165,  107  N.  W.  900. 


i 


§§   168-169)  MANAGEMENT  OF  WARD's   ESTATE.  339 

thorities  agree  that  if  the  guardian  deposits  his  ward's  moneys,  not 
only  in  his  own  name,  but  together  with  funds  of  his  own,  he  is  Hable 
if  they  are  lost  by  a  failure  of  the  bank;  and,  by  the  weight  of  au- 
thority, he  is  so  liable  if  he  merely  makes  the  deposit  in  his  own 
name,  without  disclosing  the  true  character  of  the  fund,  though  there 
is  no  mingling  of  it  with  his  own  moneys;  for  he  thus  obtains  per- 
sonal credit  on  the  appearance  of  owning  the  deposit,  which  is  an 
advantage  to  himself  from  the  management  of  the  ward's  moneys.*" 
In  a  Maryland  case,  a  guardian,  before  the  failure  of  a  bank,  had  de- 
posited his  ward's  money  in  his  own  name,  and  taken  certificates  of 
deposit  therefor,  but  he  did  not  give  notice  of  his  fiduciary  relation 
to  the  deposit.  It  was  held  that  he  must  bear  the  loss  of  the  deposit 
from  a  failure  of  the  bank,  though  there  was  no  mingling  of  the 
money  with  his  own  funds,  and  though  he  made  on  the  certificates  an 
indorsement  that  they  were  the  property  o'f  his  ward.  The  court 
said:  "At  the  same  time  that  this  court  feels  itself  bound  to  shield 
a  trustee  from  harm  in  the  honest  and  faithful  discharge  of  his  duties 
in  his  fiduciary  character,  it  is  bound  studiously  to  exercise  a  vigilant 
care  in  protecting  the  interests  cfl  those  who,  from  their  tender  years, 
are  incapable  of  protecting  themselves.  No  principle  seems  to  be 
better  settled  than  that,  in  such  a  case  as  this,  any  loss  arising  from 
a  misplaced  confidence  in  the  solidity  of  a  banking  institution,  or 
other  depositories  of  trust  property,  must  be  borne  by  the  trustee, 
and  not  by  his  cestui  que  trust.  By  making  the  deposit  in  his  own 
name,  he  gained  a  credit  with  the  bank,  and  reaped  all  the  advantages 
which  could  be  derived  from  the  apparent  ownership  of  the  sum  de- 
posited, assuming  his  authority  so  to  make  such  a  deposit ;  and,  hav- 
ing received  the  benefit,  the  law  declares,  and  justice  seems  to  re- 
quire, that  he  should  bear  the  loss.  Nor  is  there  any  peculiar  hard- 
ship in  the  establishment  of  such  a  principle,  which  would  deter  a 
prudent  trustee  from  assuming  upon  himself  the  responsibilities  of 
such  a  fiduciary  relation,  as  it  is  at  all  times  in  his  power  to  avoid  any 
risk  or  responsibility  by  clothing  the  transaction  in   its  true  colors, 

■*B  2  Pom.  Eq.  Jur.  §  10G7 ;  Wren  v.  Kirton,  11  Ves.  377;  Fletcher  v.  Walker, 
3  Madd.  73;  Macdonnell  v.  Hardins,  7  Sim.  178;  Jenkins  v.  Walter,  8  Gill 
&  J.  (Md.)  218,  29  Am.  Dec.  539;  McAllister  v.  Com.,  30  Pa.  536;  Williams  v. 
Williams,  55  Wis.  300,  12  N.  W.  465,  13  N.  W.  274,  42  Am.  Rep.  70S;  Booth 
V.  Wilkinson,  78  Wis.  652,  47  N.  W.  1128,  23  Am.  St.  Rep.  443;  Vaiden  v. 
Stubblefield's  Ex'r,  28  Grat.  (Va.)  153.  But  see  Davis  v.  Harman,  21  Grat 
(Va.)  194;  Parsley's  Adm'r  v.  Martin,  77  Va.  376,  46  Am.  Rep.  733. 


340  RIGHTS,  DUTIES,  AND   LIABILITIES  OF  GUARDIANS.  (Ch.  12 

and  making  the  deposit,  not  in  his  own  name,  but  in  the  name  of  him 
who  is  the  real  owner,  and  for  whom  he  is  trusted."  **  And,  by  the 
weight  of  authority,  the  liability  of  the  guardian  is  the  same  in  any 
ofher  case  where  he  invests  his  ward's  funds  in  his  own  name.*^ 

Some  of  the  courts  have  adopted  a  less  stringent  doctrine,  and  re- 
quire some  want  of  good  faith  on  the  part  of  the  guardian  to  render 
him  liable  for  a  loss  happening  without  his  fault.  The  Virginia 
court  has  held,  for  instance,  that  the  mere  fact  that  the  guardian  de- 
posits the  ward's  funds  in  his  own  name  is  not,  alone,  sufficient  to 
render  him  liable  on  failure  of  the  bank,  where  there  is  no  mingling  of 
the  funds  with  his  own,  and  he  acts  in  perfect  good  faith,  and  not  for 
his  personal  advantage.*^  In  this  case  two  of  the  five  judges  dis- 
sented, and  the  great  weight  of  authority  is  against  the  decision.*' 

A  purchase  by  a  guardian  at  a  sale  of  the  ward's  property  will 
be  set  aside,  as  against  him,  not  only  when  he  has  taken  an  undue 
advantage,^**  but,  by  the  weight  of  authority,  even  when  the  sale 
was  fairly  made,  and  for  an  adequate  price,  on  the  ground  that  a 
trustee  will  not  be  allowed  to  place  himself  in  a  position  where  his 
interests  may  be  inconsistent  with  his  duty.°^     "An  inclination  has 


4  6  Jenkins  v.  Walter,  8  Gill  &  J.  (Md.)  218,  29  Am.  Dec.  539. 

*7  Kuowlton  V.  Bradley,  17  N.  H.  458,  43  Am.  Dec.  609;  White  v.  Parker, 
8  Barb.  (N.  Y.)  48.  In  Knowlton  v.  Bradley,  supra,  it  was  held  that  a  guard- 
ian taking  a  note  payable  to  himself  individually,  without  a  designation  of 
his  official  capacity,  cannot  show,  on  the  failure  of  the  debtor,  that  it  was 
taken  for  the  funds  of  his  ward.  But  see  Barney  v.  Parsons'  Guardian,  54 
Vt.  623,  41  Am.  Rep.  858. 

4  8  Parsley's  Adm'r  v.  Martin,  77  Va.  376,  46  Am.  Rep.  733. 

4»  See  the  cases  in  notes  45-47,  supra,  in  many  of  which  the  facts  were 
similar  to  those  in  Jenkins  v.  Walter,  8  Gill  &  J.  (Md.)  218,  29  Am.  Dec.  539. 
See,  particularly,  Williams  v.  Williams,  55  Wis.  300,  12  N.  W.  465,  13  N.  W. 
274,  42  Am.  Rep.  708. 

80  LeFevre  v.  Laraway,  22  Barb.  (N.  Y.>  167 ;  Hayward  v.  Ellis,  13  Pick. 
(Mass.)  272;  Mann  v.  McDonald,  10  Humph.  (Tenn.)  275. 

51  2  Pom.  Eq.  Jur.  §  481 ;  Gary  v.  Gary,  2  Sch.  &  L.  173 ;  Ex  parte  James, 
8  Ves.  348;  Davoue  v.  Fanning,  2  Johns.  Gh.  (N.  Y.)  252;  Michoud  v.  Girod, 
4  How.  503,  11  L.  Ed.  1076;  Scott  v.  Fi  eel  and,  7  Smedes  &  M.  (jNIiss.)  409, 
45  Am.  Dec.  310;  Sunter  v.  Sunter,  190  Mass.  449,  77  N.  E.  497;  In  re 
Tanner's  Estate,  218  Pa.  301,  67  Atl.  646;  Chorpenning's  Appeal,  32  Pa.  315, 
72  Am.  Dec.  789;  Morgan  v.  Johnson,  68  HI.  190;  LeFevre  v.  Laraway,  22 
Barb.  (N.  Y.)  167 ;  Beal  v,  Harmon,  38  jNIo.  435 ;  Taylor  v.  Calvert,  138  Ind. 
67,  37  N.  E.  531.  To  brliig  a  case  within  the  operation  of  this  rule,  "the  re- 
lation," said  the  Pennsylvania  court  in  Ghorpenning's  Appeal,  supra,  "must 


§§    168-169)  MANAGEMENT   OF    WARD's    ESTATE.  341 

been  manifested  by  some  of  the  English  judges,  and  perhaps  by- 
some  of  the  courts  in  this  country,  to  look  into  the  transaction,  when 
a  trustee  has  purchased  the  trust  property,  and  to  make  its  vaHdity 
rest  upon  its  fairness."  The  decided  weight  of  authority,  however, 
is  the  other  way.  The  sale  may  be  set  aside  at  the  option  of  the 
cestui  que  trust,  as  a  matter  of  course.  *  *  *  This  is  the  saf- 
est rule.  It  removes  temptation  from  the  trustee.  If  he  is  permit- 
ted, under  any  circumstances,  to  become  a  purchaser  of  the  trust 
estate,  the  deepest  frauds  may  be  cloaked  under  the  guise  of  fairness, 
and  exclude  the  possibility  of  proof."  °^  As  against  a  subsequent 
purchaser  from  the  guardian,  a  different  question  is  presented.  Such 
sale  is  not  void,  but  voidable  only,  and  an  innocent  purchaser  for 
value  from  the  guardian  would  acquire  a  good  title."^*  If  a  guard- 
ian sells  his  own  property  to  the  ward,  the  rule  is  the  same.  The 
transaction  is  voidable,  at  the  option  of  the  ward,  on  attaining  his 
majority,  or  before.^ "^ 

A  purchase  of  a  ward's  property  by  the  guardian,  or  a  sale  by 
the  guardian  of  his  own  property  to  the  ward,  is,  as  stated  above, 
merely  voidable  at  the  option  of  the  ward.  He  may  ratify  it  aft- 
er attaining  his  majority,  in  which  case,  if  he  has  full  knowledge 
of  his  rights,  and  is  not  unduly  influenced  by  the  guardian,  he  can- 
not afterwards  avoid  it.  And  his  ratification  may  be  implied  from 
his  conduct.  Thus  it  may  be  implied  from  an  unreasonable  delay 
in  taking  steps  to  have  the  transaction  set  aside  after  attaining  his 
majority,  provided  he  had  full  knowledge  of  his   rights.^^     So,  al- 

be  one  in  which  knowledge,  by  reason  of  the  confidence  reposed,  might  be 
acquired,  or  power  exists  to  affect  injuriously  the  interests  of  cestuis  que 
trustent,  or  advance  that  of  the  trustee.  The  reason  of  the  law  is  its  life,  and, 
unless  some  advantage  might  be  gained  by  reason  of  the  relation,  the  principle 
does  not  apply."  It  was  therefore  held  in  that  case  that  a  guardian  may 
purchase  the  interest  of  his  ward  when  the  sale  is  made  by  a  public  oflacer, 
and  is  inevitable.  In  this  case,  land  in  which  minors  had  an  interest  as 
heirs  was  sold  by  tfie  sheriff  mider  an  execution  against  the  personal  repre- 
sentative of  their  ancestor,  and  their  guardian,  who  had  no  funds  of  the 
wards,  purchased  at  the  sale.  The  purchase  was  sustained.  See,  also,  Prevost 
V.  Gratz,  Fed.  Gas.  No.  11,406 ;  Fisk  v.  Sarber,  6  Watts  &  S.  (Pa.)  18. 

6  2  Elrod  V.  Lancaster,  2  Head  (Tenn.)  571,  75  Am.  Dec.  749. 

6  3  Scott  V.  Freeland,  7  Smedes  &  M.  (Miss.)  409,  45  Am.  Dec.  310. 

6*  Wyman  v.  Hooper,  2  Gray  (Mass.)  141 ;  Morrison  v.  Kinstra,  55  Miss. 
71 ;  Taylor  v.  Brown,  55  Mich.  482,  21  N.  W.  901. 

6  6  Hendee  v.  Cleaveland,  54  Vt  142. 

68  2  Kent,  Comm.  238;  Scott  v.  Freeland,  7  Smedes  &  M.  (Miss.)  409,  45 


342  RIGHTS,  DUTIES,  AND   LIABILITIES  OF  GUARDIANS.  (Ch.  12 

SO,  the  receipt  by  the  ward,  on  becoming  of  age,  of  the  value  of  his 
property  purchased  by  the  guardian,  or  the  use  of  property  sold  to 
him  by  his  guardian,  is  an  affirmance  of  the  transaction,  and  renders 
it  binding/^ 

Right  of  Ward  to  Folloiv  Trust  Property. 

The  right  of  a  cestui  que  trust  to  follow  the  trust  estate,  when 
wrongfully  disposed  of  by  the  trustee,  is  thus  clearly  stated  in  Mr. 
Fetter's  work  on  Equity:  "Where  trust  property  has  been  wrong- 
fully disposed  of  by  the  trustee,  the  cestui  que  trust  may  assert  his 
right  to  the  specific  property  in  two  ways:  (a)  He  may  follow  it 
into  the  hands  of  the  person  to  whom  it  has  been  wrongfully  con- 
veyed by  the  trustee,  unless  such  person  is  a  bona  fide  purchaser 
for  value  without  notice  of  the  trust,  (b)  He  may  attach  and  fol- 
low the  property  that  has  been  substituted  for  the  trust  estate  so 
long  as  the  substituted  property  can  be  traced."  "^ 

This  doctrine  applies  to  guardianship.  Aside  from  the  ward's  right 
of  action  on  the  guardian's  bond  for  misappropriation  of  trust  funds, 
he  may  follow  and  recover  the  trust  property,  when  it  can  be  trac- 
ed and  identified,  into  whosesoever  hands  it  ma}^  come,  other  than  pur- 
chasers for  value  without  notice,  and  in  whatsoever  form  it  may  take. 
If,  for  instance,  a  guardian  invests  trust  funds,  in  his  own  name, 
in  a  negotiable  note  or  other  security,  the  ward  may  claim  the  note 
or  other  security,  not  only  in  the  hands  of  the  guardian,  but  also 
in  the  hands  of  his  transferees,  provided  they  are  not  purchasers  for 
value,  without  notice  of  the  character  of  the  security,  as  trust  prop- 
erty."* So  if  the  guardian  unlawfully  purchases  property,  real  or 
personal,  with  the  funds  of  his  ward,  there  is  a  resulting  trust  for 
the  ward,  "so  that  he  may  either  claim  a  beneficial  right  to  the  prop- 
erty, or,  at  his  election,  claim  a  lien  upon  the  property,  for  the  se- 
curity   of  the  money  invested  in  it;    and,  if  the  trustee  sell,  the  pur- 


Am.  Dec.  310;  Iloyt  v.  Sprague,  103  U.  S.  613,  26  L.  Ed.  585;  Telpel  v.  Van 
derweier,  3G  Minu.  443,  31  N.  W.  934;  Cassedy  v.  Casey,  58  Iowa,  32G,  12 
N.  W.  2SG;  Sherry  v.  Sansberry,  3  lud.  320;  In  re  Wood,  71  Mo.  623;  Trader 
V.  Lowe,  45  Md.  1. 

57  Scott  V.  Freeland,  7  Smedes  &  M.  (Miss.)  409,  45  Am.  Dec.  310;  Caplinger 
V.  Stokes,  Meigs  (Teun.)  175. 

c  8  Fetter,  Eq.  207. 

5  9  Carpenter  v.  McBride,  3  Fla.  292,  52  Am.  Dec.  379.  And  see  Brown  v. 
Dunham,  11  Gray  (Mass.)  42;  Burdeau  v.  Davey,  43  La.  Ann.  585,  9  South. 
752. 


§§    168-169)  MANAGEMENT   OF   WARD'S   ESTATE.  343 

chaser  from  him  with  notice  of  the  trust,  stands  in  the  shoes  of 
the  trustee."  *°  Guardianships  are  trusts,  and  "trusts  are  not  on- 
ly enforced  against  those  persons  who  are  rightfully  possessed  of 
the  trust  property  as  trustees,  but  against  all  persons  who  come  into 
possession  of  the  property  bound  by  the  trust,  with  notice  of  such 
trust."  " 

So  long  as  the  ward's  property  can  be  identified  in  the  hands  of 
the  guardian  in  whatever  form  it  may  take  the  ward  is  entitled  to 
recover  it  as  against  the  guardian's  creditors  in  case  of  his  insolven- 
cy or  bankruptcy.  Thus  where  a  guardian  invested  his  ward's  funds 
in  a  promissory  note  payable  to  his  own  order  and  died  insolvent, 
it  was  held  that  the  ward  was  entitled  to  recover  the  full  amount  of 
the  note  from  the  estate.**  But,  if  the  property  of  the  ward  is  min- 
gled with  that  of  the  guardian  in  such  a  way  that  its  identity  is  lost, 
the  ward  has  no  rights  superior  to  those  of  general  creditors.®^ 

The  ward  cannot  follow  the  trust  property  into  the  hands  of 
purchasers  for  value,  and  without  notice,  but  his  remedy  in  such  a 
case  is  against  the  guardian  and  his  sureties.**  A  guardian  has 
the  right  to  sell  the  personal  property  of  his  ward,  if  the  interests 
of  the  ward  require  him  to  do  so.  A  purchaser  from  the  guardian 
has  a  right  to  presume  that  the  guardian  is  acting  for  the  benefit 
of  the  ward,  and  he  is  not  obliged  to  see  to  the  application  of  the 
money  paid.  A  bona  fide  purchaser,  therefore,  of  the  personal  prop- 
erty of  a  ward  from  his  guardian,  will  be  protected  from  claims  of 
the  ward  because  of  the  guardian's  breach  of  trust.*"* 

eo  Turner  v.  Street,  2  Rand.  (Va.)  4(Mr,  14  Am.  Dec.  792;  Burling  v.  Ham- 
mar,  20  N.  .7.  Eq.  220;  Boisseau  v.  Boisseau,  79  Va.  73,  52  Am.  Rep.  GIG; 
Sterling  v.  Arnold,  54  Ga.  690 ;  Armitage  v.  Snowden,  41  Md.  119 ;  Morrison 
V.  Kinstra,  55  Miss.  71;  Beazley  v.  Harris,  1  Bush  (Ky.)  533;  Robinson  v. 
Robinson,  22  Iowa,  427;  Patterson  v.  Booth,  103  Mo.  402,  15  S.  W.  543.  But 
where  a  guardian  purchases  property  on  his  own  credit,  and  subsequently 
appropriates  his  ward's  funds  to  the  payment  of  his  debt  therefor,  no  trust 
arises  in  the  ward's  favor.  French  v.  Sheplor,  83  Ind.  2GG,  43  Am.  Rep.  67; 
Richardson  v.  Day,  20  S.  C.  412. 

81  Adair  v.  Shaw,  1  Sch.  &  L.  262. 

«2  Brown  v.  Dunham,  11  Gray  (Mass.)  42. 

68  Covey  V.  Neff,  63  Ind.  391 ;  Yason  v.  Bell,  53  Ga.  41G. 

84  Field  V.  SchiefEelin,  7  Johns.  Ch.  (N.  Y.)  151,  11  Am.  Dec.  441. 

85  A  person  dealing  with  a  guardian,  and  acquiring  property  belonging 
to  the  wards  from  him,  is  not  to  be  regarded  as  an  innocent  purchaser  of  the 
property,  if  the  transaction  was  on  the  face  of  it  a  breach  of  the  trust;  and 
it  can  make  no  difference  in  such  case  that  such  person  was  not  guilty  of 


344  RIGHTS,  DUTIES,  AND   LIABILITIES  OF   GUARDIANS.  (Ch    12 

Where  the  ward  has  once  repudiated  an  unauthorized  investment 
or  disposition  of  the  trust  property,  and  elected  to  hold  the  guardian 
and  his  sureties  responsible,  he  cannot  afterwards  enforce  a  trust 
against  the  property." 


SAME— ACTS   IN   EXCESS    Or   AUTHORITY, 

170.  If  a  guardian  exceeds  his  authority,  thongh  in  good  faitli,  he 
is  liable  for  any  resulting  loss.  If  there  is  benefit  instead  of 
loss,  the  vrard  may  claim  the  benefit. 

If  the  guardian  acts  beyond  the  scope  of  his  authority,  although  in 
good  faith  and  with  the  best  intentions,  and  such  unauthorized  trans- 
action is  detrimental  to  the  ward,  the  guardian  will  be  personally 
liable;  but  if  it  is  beneficial  to  the  ward  the  guardian  will  be  pro- 
tected, and  the  ward  take  the  benefit.®^     "In  equity,  the  dealing  of 

any  fraudulent  intent.     Thus,   where  a  guardian   unlawfully   (post,   p.  ) 

used  the  fvmds  of  the  ward  to  purchase  a  real  estate  for  the  ward,  without 
leave  of  court,  it  was  held  that,  as  the  breach  of  trust  was  apparent  on  the 
face  of  the  transaction,  the  vendor  of  the  land,  though  he  may  have  been 
innocent  of  any  actual  fraudulent  intent,  was  to  be  regarded  as  a  participant 
in  the  breach,  and  that  he  was  liable  for  the  amount  received  by  him,  with 
interest.  Boisseau  v.  Boisseau,  79  Va.  73,  52  Am.  Rep.  616.  So,  where  a  per- 
son receives  from  a  guardian,  in  payment  of  the  personal  debt  of  the  guard- 
ian, money  which  he  knows  to  belong  to  the  ward,  the  ward  may  hold  him 
liable.  It  will  not  do  for  him  to  say  that  he  acted  in  good  faith,  for  "the 
law  stamps  the  transaction  as  fraudulent,  however  innocent  the  intention  of 
the  parties;  not  actual  fraud  in  this  case,  but  fraud  in  law,  arising  from  a 
misapplication  of  trust  funds."  Asberry's  Adm'r  v.  Asberry's  Adm'r,  33  Grat. 
(Va.)  470. 

6  6  Rov.'ley  V.  Towsley,  53  Mich.  329,  19  N.  W.  20;  Beam  v.  Froneberger, 
75  N.  G.  540;  Edmonds  v.  Morrison,  5  Dana  (Ky.)  223 ;  Clayton  v.  McKinnon, 
54  Tex.  206. 

6  7  Milner  v.  Harewood,  18  Ves.  259;  May  v.  Duke,  61  Ala.  53;  In  re  Mells, 
64  Iowa,  391,  20  N.  W.  486;  Jackson  v.  Sears,  10  Johns.  (N.  Y.)  435;  Capehart 
v.  Huey,  1  Hill,  Eq.  (S.  C.)  405;  Eichelberger's  Appeal,  4  Watts  (Pa.)  84; 
Smith  V.  Dibrell,  31  Tex.  239,  98  Am.  Dec.  520.  "It  is  a  well-settled  principle 
of  equity  that  wherever  a  trustee,  or  one  standing  in  a  fiduciary  character, 
deals  with  the  trust  estate  for  his  own  personal  profit,  he  shall  account  to 
the  cestui  que  trust  for  all  the  gain  which  he  has  made.  If  he  uses  the 
trust  money  in  speculations,  dangerous,  though  profitable,  the  risk  will  be 
his  own,  but  the  profit  will  inure  to  the  cestui  que  trust  Such  a  rule,  though 
rigid,  is  necessary  to  prevent  malversation."  Barney  v.  Saunders,  16  How. 
543,  14  L.  Ed.  1947. 


§  171)  DEGREE  OF  CARE  REQUIRED.  345 

guardians  with  the  estates  of  their  wards  is  watched  over  with  a  vig- 
ilant jealousy  by  the  chancellor.  And  while  the  chancellor  will  oft- 
en uphold  and  ratify  contracts  and  arrangements  made  by  the  guar- 
dian which  are  for  the  interest  of  his  ward,  although  there  may  be 
no  authority  or  express  sanction  of  law  for  the  special  course  he  may 
have  pursued,  yet,  if  such  contract  or  arrangement  be  detrimental 
to  the  estate  of  the  ward,  it  is  the  province  and  the  duty  of  courts 
of  equity  to  vacate  and  set  it  aside.  It  is  upon  a  similar  principle 
of  natural  justice  that  the  infant  or  minor,  when  he  attains  his  ma- 
jority, is  permitted  to  make  his  election  to  adopt  and  confirm  the  con- 
tracts of  his  guardian  without  authority  of  law  in  and  about  his  es- 
tate, when  they  are  to  his  advantage,  and  to  repudiate  them  if  he  deem 
them  injurious.  If  the  guardian  sell  the  land  of  his  ward  without 
being  authorized  by  law,  the  ward  has  his  election  to  accept  the  price, 
or  reclaim  the  land,  when  he  comes  of  age,  no  matter  who  has  be- 
come the  purchaser."  •* 

SAME— DEGREE  OF  CARE  REQUIRED. 

171.   A   guardian,   is   bound  to   exercise   ordinary   care   and   prudence, 
and  no  more,  in  tlie  management  of  his  ward's  estate. 

In  the  management  of  the  ward's  estate,  the  guardian  must  exer- 
cise ordinary  prudence  and  care,  and  such  prudence  and  care  only. 
If  he  acts  as  a  prudent  man  of  business  would  do  under  similar  cir- 
cumstances in  the  management  of  his  own  affairs,  and  a  loss  results, 
he  will  not  be  held  responsible,  if  he  acted  within  the  scope  of  his 
authority  and  in  good  faith.""  So  where  a  guardian,  in  the  use  of 
due  care,  deposits  the  ward's  funds  in  a  bank  regarded  as  solvent, 
to  remain  for  such  time  as  may  be  reasonably  necessary  for  the  same 
to  be  invested  under  order  of  court,  he  is  not  liable  for  a  loss  re- 
sulting from  the  failure  of  the  bank.^»     But  for  losses  caused  by  his 

«8  Smith  V.  Dibrell,  31  Tex.  239,  98  Am.  Dec.  526. 

88  Ex  parte  Belchier,  Aiiib.  218;  Speight  v.  Gaunt,  9  App.  Cas.  1;  Lamar 
V.  Micou,  112  U.  S.  452,  5  Sup.  Ct.  221,  28  L.  Ed.  751;  Taylor  v.  Kellogg,  103 
Mo.  App.  258,  77  S.  W.  130;  Scoville  v.  Brock,  79  Vt.  449,  G5  Atl.  577,  118 
Am.  St.  Rep.  975;  Holeman  v.  Blue,  10  111.  App.  130;  State  v.  Morrison,  68 
N.  C.  162;  Walker  v.  Walker,  42  Ga.  135;  Barney  v.  Parsons'  Guardian,  54 
Vt.  623,  41  Am.  Rep.  858;  Glover  v.  Glover,  McMul.  Eq.  (S.  C)  153;  Taylor 
V.  Hite,  61  Mo.  142. 

70  Murph  V.  McCullough,  41  Tex.  Civ.  App.  403,  90  S.  W.  69;  In  re  Law, 
144  Pa.  499,  22  Atl.  831,  14  L.  R.  A.  103. 


346  RIGHTS,  DUTIES,  AND   LIABILITIES  OF  GUARDIANS.  (Ch.  12 

negligence  or  inexcusable  mismanagement  he  will  be  held  to  ac- 
count; ^^  and  if  he  deposits  money  in  bank  for  a  fixed  period  un- 
der an  unauthorized  agreement,  whereby  his  right  to  withdraw  the 
money  is  suspended  for  such  period,  he  is  liable  for  a  loss  occur- 
ring through  the  failure  of  the  bank.^^ 

So  where  a  guardian  received  a  note,  as  part  of  the  property  of  his 
ward,  executed  by  a  person  who  had  property  sufficient  to  pay  it,  and 
failed  either  to  obtain  security  for  its  payment,  or  to  obtain  judgment 
on  it,  though  he  had  sufficient  time  and  opportunity  to  do  so,  and  al- 
lowed all  the  property  of  the  maker,  which  he  had  assigned  for  the 
benefit  of  creditors,  to  be  distributed  to  other  creditors,  it  was  held 
that  he  was  guilty  of  negligence,  and  was  liable  to  the  ward  for  the 
amount  of  the  note  and  interest  thereon.  "While  a  court,"  it  was 
said,  "is  always  loth  to  surcharge  a  trustee  with  money  that  never 
came  into  his  hands,  and  exacts  from  him  only  reasonable  and  ordi- 
nary care  in  such  matters,  it  will  not  do  for  a  guardian  to  utterly  neg- 
lect his  duties  in  the  care  and  management  of  his  ward's  estate.  Or- 
dinary prudence  in  this  instance  would  have  saved  his  ward's  money, 
and  we  are  not  measuring  his  responsibility  by  any  higher  standard. 
It  is  not  too  much  to  say  that,  had  this  been  his  own  money,  in  all 
probability  it  would  not  have  been  lost;  and  he  ought  not  to  have 
been  less  vigilant  in  his  ward's  interest  than  he  would  have  been  in 
his  own."  ^^  In  another  case  it  was  said  in  reference  to  a  guardian's 
'liability  for  negligence:  "A  fiduciary  relation  requires  vigilance  as 
well  as  honesty.  A  dead  and  sluggish  calm — a  supine  negligence — 
is  full  of  peril  to  the  minor.  It  is  often  as  fatal  as  positive  dishon- 
esty." '* 

71  Kimball  v.  Perkins,  130  Mass.  141;  Covey  v.  Leslie,  144  Mich.  1G5,  107 
N.  W.  900;  Shurtleff  v.  Kilo,  140  Mass.  213,  4  N.  E.  407;  Pierce  v.  Prescott, 
128  Mass.  140;  Iloyer's  Appeal,  11  Pa.  36;  Balthaser's  Appeal,  133  Pa.  338, 
19  Atl.  403;  Potter  v.  Hiscox,  30  Conn.  508;  Boaz's  Adni'r  v.  Milliken,  83 
Ky.  634 ;  Harris  v.  Harrison,  78  N.  C.  202. 

7  2  Murph  V.  McCullough,  40  Tex.  Civ.  App.  403,  90  S.  W.  69.  See,  also, 
Evans'  Estate,  7  Pa.  Super.  Ct  142,  when  the  guardian  left  the  larger  part 
of  his  ward's  money  in  bank  uninvested  for  four  years  and  was  held  liable 
for  loss  by  failure  of  the  bank,  though  there  was  no  bad  faith.  And  in  State 
V.  Gooch,  97  N.  C.  180,  1  S.  E.  653,  2  Am.  St.  Rep.  284,  it  was  held  that  It  did 
not  show  prudence  on  the  part  of  the  guardian  to  deposit  his  ward's  money 
in  bank  in  another  state. 

7  8  Balthaser's  Appeal,  133  Pa.  338,  19  Atl.  403. 

T*  Royer's  Appeal,  11  Pa.  36. 


§   172)  COLLECTION   AND   PROTECTION   OP  PROPERTT.  347 

SAME— COLLECTION     AND      PROTECTION      OP     PROPERTY— AC- 
TIONS. 

172.   It  is  the  guardian's  dnty  to  collect  and  protect  his  ward's  prop- 
erty of  every  description.      To  this  end, 
(a)    He  may  bring  suit— 

(1)  In  his  ward's  name  generally. 

(2)  In  his  own  name  on  contracts  made  by  him  as  gnardian. 
Cb)    He  may  accept  property  in  settlement  of  claims. 

(c)  He  may  compromise  claims. 

(d)  He  may  submit  to  arbitration. 

In  this  country  a  guardian  has  the  general  management  of  the 
ward's  estate,  and  acts  largely  according  to  his  own  discretion,  and 
at  his  own  risk,  subject,  of  course,  to  the  supervision  of  the  court  in 
the  settlement  of  his  accounts.  His  duties  and  powers  are,  in  the 
main,  those  of  all  trustees.  On  his  qualification  as  a  guardian,  it  is 
his  right  and  duty  to  take  possession  of  the  ward's  property,  of  every 
description,^®  and  wherever  situated.''*  It  is  his  duty  to  make  every 
reasonable  effort  to  reduce  choses  in  action  to  possession,  and  to  en- 
force any  claim  which  the  ward  may  have  either  to  real  or  to  personal 
property.''^  And,  of  course,  when  it  is  necessary,  he  may  maintain 
suits  for  this  purpose.''*     A  guardian  will  be  charged  with  loss  re- 

7  6  Pierce  v.  Preseott,  128  Mass.  140.  Damages  recovered  in  an  action  for 
personal  injuries  should  be  paid  to  the  guardian,  and  not  to  the  ward's  next 
friend.     City  of  Austin  v.  Colgate  (Tex.  Civ.  App.)  27  S.  W.  896. 

7  0  Potter  V.  Hiscox,  30  Conn.  508. 

7  7  United  States  Fidelity  &  Guaranty  Co.  v.  State,  40  Ind.  App.  136,  81 
N.  E.  226 ;  Ware  v.  Ware,  28  Grat.  (Va.)  670 ;  Longino  v.  Delta  Bank,  75  Miss. 
407,  23  South.  178.  He  may  delegate  the  power  to  perform  any  ministerial 
act,  such  as  the  receiving  of  money  due  the  ward.  Forbes  v.  Reynard,  113 
App.  Div.  306,  9S  N.  Y.  Supp.  710. 

7  8  Smith  v.  Bean,  8  N.  H.  15;  Shepherd  v.  Evans,  9  Ind.  260;  Boyson  v. 
Collmer,  33  Ind.  App.  494,  71  N.  E.  229;  Taylor  v.  Bemiss,  110  U.  S.  42,  3 
Sup.  Ct.  441,  28  L.  Ed.  64.  The  guardian  has  the  same  control  over  his  ac- 
tion as  any  other  suitor  has.  South  Bend  Land  Co.  v.  Denio,  7  Wash.  303, 
35  Pac.  64.  In  Boruff  v.  Stipp,  126  Ind.  32,  25  N.  E.  865,  it  was  contended 
that  a  guardian  could  not  maintain  replevin  to  recover  possession  of  his 
ward's  property;  that  an  action  for  this  purpose  should  be  brought  by  the 
infant's  next  friend,  under  the  statute  allowing  him  to  sue  by  next  friend. 
In  overruling  this  contention,  the  court  said:  "The  right  of  action  for  the 
possession  is  not  necessarily  in  the  infant,  when  he  has  a  legally  appointed 
guardian,  claiming  the  i>ossession  and  custody  of  the  personal  property.  No 
doubt,  an  infant  may,  by  his  next  friend,  in  some  instances,  prosecute  an 


348  RIGHTS,  DUTIES,  AND   LIABILITIES  OF   GUARDIANS.  (Ch.  12 

suiting  from  negligence  in  failing  to  perform  these  duties.^®  This 
is  true  where  a  guardian  neglects  to  take  steps  to  enforce  payment 
of  a  note  due  his  ward,^"  or  where  he  fails  to  recover  possession  of 
real  estate  belonging  to  his  ward,  or  to  enforce  any  other  property 
right  of  his  ward.  "In  obtaining  possession  of  the  ward's  estate,  as 
well  as  in  its  preservation  and  disposition,  a  guardian  is  held  to  the 
same  degree  of  responsibility  as  is  imposed  upon  executors,  adminis- 
trators, and  trustees.  It  is  his  duty  to  recover  all  the  property  of 
his  ward  which  comes  to  his  knowledge,  whether  in  possession  or  in 
action.  He  must  use  due  diligence  to  discover  its  existence.  He  is 
bound  to  use  that  care  and  prudence  which  competent  and  faithful 
men  employ  in  their  own  business.  If  he  has  knowledge  of  all  the 
facts  upon  which  the  title  of  his  ward  depends,  then  it  is  a  breach  of 
duty  on  his  part  not  to  assert  and  enforce  that  title.  It  is  an  obliga- 
tion assumed  by  accepting  the  guardianship,  for  the  neglect  of  which 
the  guardian  cannot  excuse  himself  by  pleading  ignorance  of  the  law 
on  which  the  rights  of  his  ward  depend.  If  the  estate  suffers  loss  by 
such  ignorance,  the  guardian  is  chargeable  with  it,  on  the  ground  of 
constructive   negligence."  *^      Of   course,    if   the   guardian    exercises 

action  for  the  possession  of  personal  property ;  but  the  guardian,  having  the 
custody  of  the  infant  and  the  management  of  his  estate,  may  also  prosecute 
an  action  for  the  possession  of  personal  property  owned  by  his  ward.  Having 
the  right  to  the  control  and  management  of  the  property,  he  must,  as  a  neces- 
sary incident,  have  the  right  to  recover  possession  of  such  property  from  one 
unlawfully  retaining  the  possession  of  the  same." 

7  9  Caffrey  v.  Darby,  6  Ves.  488;  Tebbs  v.  Carpenter,  1  Madd.  290;  Balthas- 
er's  Appeal,  133  Pa.  338,  19  Atl.  403  (ante,  p.  346) ;  Caney  v.  Bond,  6  Beav. 
48G;  Pierce  v.  Prescott,  128  Mass.  140;  White  v.  Parker,  8  Barb.  (N.  Y.) 
48;  Bond  v.  Lockwood,  33  111.  212;  Covington  v.  Leak,  65  N.  C.  594;  Carrillo 
v.  McPhillips,  55  Cal.  130;  Gulp  v.  Dee,  109  N.  C.  675,  14  S.  E.  74;  Dodson 
V.  McKelvey,  93  Mich.  263,  53  N.  W.  517;  Boaz's  Adm'r  v.  Milliken,  83  Ky. 
(J34.  See  Abrams  v.  United  States  Fidelity  &  Guaranty  Co.,  127  Wis.  579, 
106  N.  W.  1091,  5  L.  R.  A.  (N.  S.)  575,  115  Am.  St.  Rep.  1055,  holding  that 
where  a  guardian  has  intrusted  a  claim  to  an  attorney  for  collection  for  the 
benefit  of  the  wards,  and  has  received  the  amounts  collected  in  bank  drafts 
or  checks  which  she  indorsed  and  returned  to  the  attorney  for  investment, 
she  is  liable  for  loss  of  funds  through  the  default  of  the  attorney. 

8  0  Monget  v.  Walker,  4  La.  Ann.  214;  Coggins  v.  Fly  the,  113  N.  a  102,  18 
S.  E.  96.  But  when  a  guardian  acted  in  good  faith  in  the  purchase  of  a  note, 
exercising  reasonable  and  proper  care,  he  is  not  liable  because  of  failure  to 
realize  on  the  note  the  amount  expected  at  the  time  of  the  purchase.  Hen- 
derson v.  Lightner,  92  S.  W.  945,  29  Ky.  Law  Rep.  301. 

81  Pierce  v.  Prescott,  128  Mass.  140. 


§  172)      COLLECTION  AND  PROTECTION  OF  PROPERTY.         349 

ordinary  prudence  in  his  management  of  the  estate,  and  is  guilty  of 
no  negligence,  he  cannot  be  held  liable  for  losses.  If  he  exercises 
ordinary  prudence,  therefore,  he  will  not  be  held  liable  because  a  claim 
becomes  worthless  though  it  might  have  been  collected  when  he  was 
appointed. ^^ 

Suits  brought  on  behalf  of  the  estate  should  ordinarily  be  in  the 
ward's  name,^^  but  the  prevailing  rule  is  that,  on  a  contract  made 
by  the  guardian  in  the  course  of  the  management  of  the  estate,  he 
should  sue  in  his  own  name.^*  In  the  exercise  of  a  proper  discretion 
he  may  accept  real  or  personal  property  in  settlement  of  a  claim,®"* 
but  he  cannot  ordinarily  accept  payment  for  less  than  the  full  amount 
of  an  enforceable  debt.®«  It  would  be  otherwise  if  in  the  exercise  of 
good  faith,  and  to  save  expense.®^  A  guardian  may  also  compromise 
claims  against  the  ward's  estate,  and  a  submission  to  arbitration  by 
him  is  authorized,  and  will  be  binding.®* 

Where  suit  is  reasonably  brought  by  a  guardian  to  recover  or  pro- 
tect his  ward's  property,  his  expenses  for  attorney's  fees  and  costs 


82  stem's  Appeal,  5  Whart.  (Pa.)  472,  34  Am.  Dec.  569 ;  Waring  v.  Darnall, 
10  Gill  &  J.  (Md.)  127;  Love  v.  Logan,  69  N.  C.  70;  ante,  p.  345. 

83  Hutehins  v.  Dresser,  26  Me.  76 ;  Vincent  v.  Starks,  45  Wis.  458 ;  Sillings 
V.  Bumgardner,  9  Grat.  (Va.)  273;  Bradley  v.  Amidon,  10  Paige  (N.  Y.)  235; 
Riggs  V.  Zaleski,  44  Conn,  ]20;  Perine  v.  Grand  Lodge,  48  Minn.  82,  50  N. 
W.  1022 ;  Dennison  v.  Willcut,  3  Idaho,  793,  35  Pac.  698 ;  Longstreet  v.  Tilton, 
1  N.  J.  Law,  38.  See,  also,  Campbell  v.  Fichter,  168  Ind.  645,  81  N.  E.  661, 
holding  ttiat  a  guardian  is  not  a  trustee  of  an  express  trust  within  Burns' 
Ann.  St.  1901,  §  252,  providing  that  a  trustee  of  an  express  trust  may  sue 
without  joining  with  him  the  person  for  whose  benefit  the  action  is  prosecuted. 

84  Pond  V.  Curtiss,  7  Wend.  (N.  Y.)  45;  Thomas  v.  Bennett,  56  Barb.  (N. 
Y.)  197;  McKinney  v.  Jones,  55  Wis.  39,  11  N.  W.  606,  12  N.  W.  381;  High- 
tower  V.  Maull,  50  Ala.  495;  Sainsevain  v.  Luce  (Cal.)  35  Pac.  1033. 

86  Mason  v.  Buchanan,  62  Ala.  110. 

«8  Darby  v.  Stribling,  22  S.  C.  243;  Knights  Templars'  &  Masons'  Life  In- 
demnity Co.  V.  Crayton,  110  111.  App.  648,  affirmed  in  70  N.  ':.  1066,  209  111, 
550. 

87  Blue  V.  Marshall,  3  P.  Wms.  381 ;  Torry  v.  Black,  58  N.  Y.  185;  Ordinary 
Y.  Dean,  44  N.  J.  Law,  64. 

88  Weston  V.  Stuart,  11  Me.  326 ;  Hutehins  v.  Johnson,  12  Conn.  376,  30 
Am.  Dec.  622;  Weed  v.  Ellis,  3  Gaines  (N.  Y.)  254;  Goleman  v.  Turner,  14 
Smedes  &  M.  (Miss.)  118 ;  Strong  v.  Beroujon,  18  Ala.  168 ;  Kelley  v.  Adams, 
120  Ind.  340,  22  N.  E.  317;  Jones  v.  Bond,  76  Ga.  517.  But  not  where  the 
Interests  of  the  guardian  and  ward  are  antagonistic.  Fortune  v.  Killebrew,  86 
Tex.  172,  23  S.  W.  976. 


350  RIGHTS,  DUTIES,  AND   LIABILITIES  OF  GUARDIANS.  (Ch.  12 

will  be  allowed  out  of  the  ward's  estate."  Allowance  will  also  be 
made  for  reasonable  counsel  fees  paid  for  advice  in  the  management 
of  the  trust,  and  for  legal  services  rendered  in  any  litigation  concern- 
ing the  ward's  estate.®"  But  the  guardian  cannot  charge  his  ward 
with  attorney's  fees  made  necessary  by  his  own  negligence.®^ 


SAME— INVESTMENTS. 

173.  A    gnardian   must   invest   his   ward's   funds   within   a  reasonable 

time;  and  if  he  fails  to  do  so  he  will  be  charged  interest,  or, 
in  case  of  gross  delinquency,  compound  interest. 

174.  He    cannot  invest   money   on   the    credit   of  individuals   or  firms, 

nor,  in  some  states,  in  stock  in  corporations,  nor  can  he  con- 
vert personalty  into  real  estate,  without  leave  of  court,  but 
generally  he  is  only  called  upon  to  use  the  care  of  a  prudent 
man   of  business. 

It  is  the  duty  of  the  guardian,  as  soon  as  it  can  reasonably  be  done 
to  advantage,  to  invest  his  ward's  funds  in  productive  securities.  He 
is  usually  allowed  a  reasonable  period,  varying  from  six  months  to  a 
year  for  this  purpose,  and  where  he  unreasonably  delays  he  will  be 
charged  interest.®^     Where  the  guardian  uses  the  ward's  money  in 

80  In  re  Flinn,  31  N.  J.  Eq.  640;  Alexander's  Adm'r  v.  Alexander,  5  Ala. 
517;  Bickerstafe  v.  Marliu,  60  Miss.  509,  45  Am.  Rep.  418;  Taylor  v.  Bemiss, 
110  U.  S.  42,  3  Sup.  Ct.  441,  28  L.  Ed.  04.  And  so,  also,  for  defending  suits. 
Mathes  v.  Bennett,  21  N.  H.  204. 

80  Voessing  v.  Voessing,  4  Redf.  Sur.  (N.  Y.)  3G0;  State  v.  Foy,  65  N.  C. 
265;  Moore  v.  Shields,  69  N.  C.  50;  Alexander  v.  Alexander,  8  Ala.  TOG;  Cald- 
well V.  Young,  21  Tex.  800.  Also  for  clerk  hire.  McWhorter  v.  Benson, 
Hopk.  Ch.  (N.  Y.)  28 ;  Van  Derheyden  v.  Van  Derheydeu,  2  Paige  (N.  Y.)  287, 
21  Am.  Dec.  86. 

81  Rawson  v.  Corbett,  43  111.  App.  127. 

92  2  Kent,  Comm.  231;  Goff's  Guardian  v.  Goff,  93  S.  W.  625,  29  Ky.  Law 
Rep.  501 ;  Murph  v.  McCullough,  40  Tex.  Civ.  App.  403,  90  S.  W.  69;  Corcoran 
V.  Renehan,  24  App.  D.  C.  411;  Merritt  v.  Wallace,  76  Ark.  217,  88  S.  W.  876; 
Boynton  v.  Dyer,  18  Pick.  (Mass.)  1;  Worrell's  Appeal,  23  Pa.  44;  Karr's 
Adm'r  v.  Karr,  6  Dana  (Ky.)  3 ;  White  v.  Parker,  8  Barb.  (N.  Y.)  48 ;  Duns- 
comb  V.  Dunsconib,  1  Johns.  Ch.  (N.  Y.)  508,  7  Am.  Dec.  504;  Owen  v.  Peebles, 
42  Ala.  338;  Pettus  v.  Sutton,  10  Rich.  Eq.  (S.  C.)  350;  Crosby  v.  Merriam,  31 
Minn.  342,  17  N.  W.  950;  Armstrong's  Heirs  v.  Walkup,  12  Grat.  (Va.)  008; 
Barney  v.  Saunders,  16  How.  535,  14  L.  Ed.  1047;  Rawson  v.  Corbett,  43 
111.  App.  127.  No  interest  will  be  charged  on  what  is  kept  on  hand  for  ordi- 
nary current  expenses.  Knowlton  v.  Bratlley,  17  N.  H.  458,  43  Am.  Dec.  009; 
Baker's  Appeal,  8  Serg.  &  R.  (Pa.)  12.    A  guardian  is  not  liable  for  interest 


§§    173-174)  INVESTMENTS.  351 

his  business,  or  otherwise  converts  it  to  his  own  use,  or  is  guilty  of 
gross  delinquency  in  his  failure  to  invest,  he  will  be  charged  with 
compound  interest.®' 

The  authorities  as  to  the  character  of  the  investments  which 
a  guardian  or  other  trustee  is  authorized  to  make  are  not  in 
accord.  Investments  are  allowed  in  some  states  which  are  not  al- 
lowed in  others.  "The  general  rule  is  everywhere  recognized,  that 
a  guardian  or  trustee,  when  investing  property  in  his  hands,  is  bound 
to  act  honestly  and  faithfully,  and  to  exercise  a  sound  discretion,  such 
as  men  of  ordinary  prudence  and  intelligence  use  in  their  own  af- 
fairs." **  In  some  jurisdictions  no  attempt  has  been  made  to  estab- 
lish a  more  definite  rule.®^  In  others  the  discretion  has  been  confin- 
ed by  the  Legislature  or  the  courts  within  strict  limits. 

Prior  to  the  Declaration  of  Independence  the  Court  of  Chancery 
in  England  allowed  considerable  latitude  to  guardians  and  other  trus- 
tees in  the  investment  of  trust  funds.  They  could  invest,  not  only 
in  public  funds  and  real  estate  securities,  but  also  in  stock  in  private 
corporations.®*  They  could  not,  however,  by  the  weight  of  authori- 
ty, invest  in  a  mere  personal  obligation,  like  a  promissory  note,  with- 
out other  than  private  security.®^     Later  the  court  limited  trust  in- 

durlng  the  first  year  after  his  appointment  unless  there  is  interest  earned. 
Griffin  v.  Collins,  125  Ga.  159,  53  S.  E.  1004. 

83  2  Kent,  Comm.  231;  Glassell  v.  Glassell,  147  Cal.  510,  82  Pac.  42;  Far- 
well  V,  Steen,  46  Vt.  678;  Swindall  v.  Swindall,  43  N.  C.  285;  Stark  v.  Gam- 
ble, 43  N.  H.  465;  Clay  v.  Clay,  3  Mete.  (Ky.)  548;  Snavely  v.  Harkrader, 
29  Grat.  (Va.)  112 ;  Boynton  v.  Dyer,  18  Pick.  (Mass.)  1 ;  Barney  v.  Saunders, 
16  How.  535,  14  L.  Ed.  1047;  Hughes  v.  People,  111  111.  457;  In  re  Eschrich, 
85  Cal.  98,  24  Pac.  634.  But  see  GofC's  Guardian  v.  Goff,  93  S.  W.  625,  29  Ky. 
Law  Rep.  501,  holding  that  if  a  guardian  uses  the  ward's  estate  in  his  own 
business,  or  mingles  the  ward's  money  with  his  own,  so  that  it  becomes  un- 
distinguishable,  he  must  account  for  at  least  legal  interest ;  and.  If  he  made  a 
greater  profit,  he  must  account  for  that  also. 

9*  Lamar  v.  Micou,  112  U.  S.  452,  5  Sup.  Ct.  221,  28  L.  Ed.  75L 

»5  Lamar  v.  Micou,  112  U.  S.  452,  5  Sup.  Ct.  221.  28  L.  Ed.  751  (collecting 
authorities);  Boggs  v.  Adger,  4  Rich.  Eq.  (S.  C.)  408,  411;  Brown  v.  Wright, 
39  Ga.  96;  Foscue  v.  Lyon,  55  Ala.  440;  Brown  v.  Campbell,  Hopk.  Ch.  (N. 
Y.)  233 ;  Harvard  College  v.  Amory,  9  Pick.  (Mass.)  446,  461 ;  Lovell  v.  Minot, 
20  Pick.  (Mass.)  116,  119,  32  Am.  Dec.  206;  Brown  v.  French,  125  Mass.  410, 
28  Am.  Rep.  254;  Bowker  v.  Pierce,  130  Mass.  262. 

»8  Jackson  v.  Jackson,  1  Atk.  513,  514. 

9 T  Ryder  V.  Bickerton,  3  Swanst.  80,  note;  Adye  v.  Feuilleteau,  1  Cox,  Ch. 
24;  Holmes  v.  Dring,  2  Cox,  Ch.  1;  Powell  v.  Evans,  5  Ves.  839.  But  see 
Knight  V.  Plimouth,  3  Atk.  480;  Harden  v.  Parsons,  1  Eden,  145. 


352  EIGHTS,  DUTIES,  AND   LIABILITIES   OF  GUARDIANS.  (Ch.  12 

vestments  to  the  public  funds,  and  excluded  investments  in  bank 
stock,  or  other  corporate  stock,  or  in  mortgages  of  real  estate.  In 
this  state  of  the  law.  Parliament  passed  acts,  and  orders  in  chancery 
were  made  pursuant  thereto,  authorizing  trustees  to  invest  in  stock 
of  the  Bank  of  England  or  of  Ireland,  or  upon  real  estate  securities, 
as  well  as  in  the  public  funds. "^ 

In  this  country  the  courts  are  not  entirely  agreed  as  to  what  are 
to  be  deemed  proper  investments  by  a  guardian  or  other  trustee.  In 
some  states  the  question  is  regulated  by  statute.  Perhaps  in  all  the 
states  he  is  authorized  to  invest  in  public  or  real  securities,  like  gov- 
ernment bonds  and  real-estate  mortgages.®*  Perhaps  in  most  states 
he  may  invest  in  stock  in  corporations,  like  railroad  and  bank  stock.^ 
In  some  states  such  an  investment  is  not  authorized.*     By  the  great 


»8  Lamar  v.  Micou,  112  U.  S.  452,  5  Sup.  Ct  221,  28  L.  Ed.  751. 

80  Gray  v.  Fox,  1  N.  J.  Eq.  259,  22  Am,  Dec.  508;  Stevens  v.  Meserve,  73 
N.  H.  293,  61  Atl.  420,  111  Am.  St.  Rep.  612;  Worrell's  Appeal,  9  Pa.  508; 
Nance  v.  Nance,  1  S.  C.  209 ;  Smith  v.  Smith,  7  J.  J.  Marsh.  (Ky.)  238. 

1  Lovell  V.  Miuot,  20  Pick.  (Mass.)  116,  32  Am.  Dec.  206;  Harvard  College 
V.  Amory,  9  Pick.  (Mass.)  446,  401 ;  Brown  v.  French,  125  Mass.  410,  28  Am. 
Rep.  254 ;  Bowker  v.  Pierce,  130  Mass.  262 ;  Smyth  v.  Burns'  Adm'rs,  25  Miss. 
422 ;  Hammond  v.  Hammond,  2  Bland  (Md.)  306 ;  Gray  v.  Lynch,  8  Gill  (Md.) 
403;  Murray  v.  Feinour,  2  Md.  Ch.  418;  Boggs  v.  Adger,  4  Rich.  Eq.  (S.  C.) 
4u8;  Haddock  v.  Bank,  66  Ga.  496;  Fidelity  Trust  &  Safety  Vault  Co.  v. 
Glover,  90  Ky.  355,  14  S.  W.  343 ;  Durett  v.  Com.,  90  Ky.  312,  14  S.  W.  189. 
Where  corporate  stock  is  held  a  good  investment,  a  guardian  may  invest  in 
a  note  secured  by  such  stock.    Lovell  v.  Minot,  supra. 

2  In  many  states  the  rule  is  against  such  an  investment.  In  a  New  York 
case  it  was  said:  "It  is  not  denied  that  the  employment  of  the  fund,  as  a 
capital  in  trade,  would  be  a  clear  departure  from  the  duty  of  trustees.  If  it 
cannot  be  so  employed  under  the  management  of  a  copartnership,  I  see  no 
reason  for  saying  that  the  incorporation  of  the  partners  tends,  in  any  degree, 
to  justify  it.  The  moment  the  fund  is  invested  in  bank  or  insurance  or  rail- 
road stock,  it  has  left  the  control  of  the  trustees.  Its  safety  and  the  hazard 
or  risk  of  loss  is  no  longer  dependent  upon  their  skill,  care,  or  discretion  in 
its  custody  or  management;  and  the  terms  of  the  investment  do  not  contem- 
plate that  it  ever  will  be  returned  to  the  trustees."  King  v.  Talbot,  40  N.  Y. 
76.  And  see  Worrell's  Appeal,  9  Pa.  508;  Allen  v.  Gaillard,  1  S.  C.  279 ;  French 
V.  Currier,  47  N.  H.  88 ;  Gray  v.  Fox,  1  N.  J.  Eq.  259,  208,  22  Am.  Dec.  508 ; 
Halsted  v.  Meeker's  Ex'rs,  18  N.  J.  Eq.  136;  Lathrop  v.  Smalley's  Ex'rs,  23 
N.  J.  Eq.  192;  Ihmsen's  Appeal,  43  Pa.  431;  Smith  v.  Smith,  7  J.  J.  Marsh. 
(Ky.)  238.  An  unauthorized  investment  of  a  ward's  funds  is  not  void,  but 
voidable  only,  as  against  one  who  takes  the  ward's  property  with  knowledge 
that  the  guardian  has  no  authority  to  transfer  it  McCutchen  v.  Roush  (Iowa) 
115  N.  W.  903. 


§§    173-174)  INVESTMENTS.  353 

weight  of  authority,  guardians  and  the  sureties  on  their  bonds  are 
responsible  for  losses  occurring  through  unsecured,  or  insufficiently 
secured,  loans  or  investments  made  on  the  credit  of  individuals  or 
firms,  however  solvent  the  individual  or  firm  may  be  when  the  loan 
or  investment  is  made — mere  personal  security  not  being  deemed  suf- 
ficient.^ And  it  is  well  settled  that  a  guardian  has  no  authority  to 
subject  his  ward's  estate  to  the  hazards  of  trade,  and  that  if  he  does 
so,  and  a  loss,  instead  of  a  profit,  results,  he  and  his  sureties  will  be 
responsible.* 

A  guardian  cannot,  without  leave  of  court  first  obtained,  change 
the  form  of  the  investment  ^  or  convert  personalty  into  real  estate,  as 
by  investing  his  ward's  funds  in  the  purchase  of  land.'  Nor  can  he 
erect  buildings  on  land  of  the  ward,  or  make  permanent  additions  to 
buildings  already  thereon,''     But  he  may  pay  taxes  and  incumbrances 

»  Clark  V.  Garfield,  8  Allen  (Mass.)  427 ;  Smith  v.  Smith,  4  Johns.  Ch.  (N. 
Y.)  281 ;  Gray  v.  Fox,  1  N.  J.  Eq.  259,  22  Am.  Dec.  508 ;  Clay  v.  Clay,  3  Mete. 
(Ky.)  548;  Covington  v.  Leak,  65  N.  C.  594;  Boyett  v.  Hurst,  54  N.  C.  166. 
But  see  Konlgmacher  v.  Kimmel,  1  Pen.  &  W.  (Pa.)  207,  21  Ajd.  Dec,  374. 
In  North  Carolina  it  seems  that  an  investment  in  a  note  with  sureties  is 
good.  Covington  v.  Leak,  65  N.  C  594.  And  in  some  states  investments  in 
the  unsecured  i)ersonal  obligation  of  an  individual  or  firm  have  been  sustained. 
See  Foscue  v.  Lyon,  55  Ala,  440,  452.  Money  placed  temporarily  in  bank  at 
interest,  though  it  can  only  be  withdrawn  on  two  weeks'  notice,  is  not  an  in- 
vestment; and,  if  the  bank  is  in  good  repute,  the  guardian  will  not  be  liable 
if  it  subsequently  fails.  Law's  Estate,  144  Pa.  499,  22  Atl.  831,  14  L,  R.  A. 
103.  It  is  otherwise  where  money  is  invested  in  a  certificate  of  deposit  of 
a  bank  in  another  state.  Such  an  investment  is  at  the  guardian's  risk.  State 
V.  Gooch,  97  N.  C.  186,  1  S,  E.  653,  2  Am.  St  Rep.  284. 

4  Martin  v.  Davis,  80  Wis.  376,  50  N.  W.  171 ;  Michael  v.  Locke,  80  Mo,  548 ; 
Corcoran  v,  Allen,  11  R.  I.  567,  See  Hoyt  v.  Sprague,  103  U.  S.  613,  26  L. 
Ed.  585, 

5  Moyers  v.  Klnnlck,  1  Tenn,  Ch.  App.  65 ;  McCutchen  v.  Roush  (Iowa)  115 
N.  W.  903, 

«2  Kent,  Comm.  230;  Perry,  Trusts,  §§  605,  606;  Witter  v.  Witter,  3  P. 
Wms.  99;  Ware  v.  Polhill,  11  Ves.  257;  Royer's  Appeal,  11  Pa.  36;  Woods 
V.  Boots,  60  Mo.  546 ;  Boisseau  v,  Boisseau,  79  Va,  73,  52  Am,  Rep.  616 ;  Skel- 
ton  V.  Ordinary,  32  Ga.  266. 

.7  Murphy  v.  Walker,  131  Mass.  341;  Burke  &  Williams  v.  Mackenzie,  124 
Ga.  248,  52  S,  E.  653 ;  In  re  Miller's  Estate,  1  Pa.  326 ;  Snodgrass'  Appeal,  37 
Pa.  377;  Hassard  v.  Rowe,  11  Barb.  (N.  Y.)  22;  Copley  v.  O'Neil,  39  How. 
Prac.  (N.  Y.)  41;  Green  v.  Winter,  1  Johns,  Ch.  (N.  Y.)  26,  7  Am.  Dec.  475; 
Cheney  v,  Roodhouse,  135  111,  257,  25  N,  E.  1019;  Payne  v.  Stone,  7  Smedes 
&  M.  (Miss.)  367.  But  see  May  v.  May,  109  Mass.  257,  where  the  cost  of  a 
building  erected  for  use,  and  not  for  an  investment,  was  allowed  the  guardian 
TIFF.P.&  D.Rel.(2d  Ed,)— 23 


354  RIGHTS,  DUTIES,  AND   LIABILITIES  OF  GUARDIANS.  (Ch.  12 

from  the  income  of  the  estate,  when  necessary  for  the  preservation 
of  the  property,  and  he  will  be  reimbursed  therefor,  though  he  has 
acted  without  the  previous  sanction  of  the  court.' 

When  the  matter  is  not  regulated  by  statute,  or  settled  by  judi- 
cial precedent  in  the  particular  jurisdiction,  a  guardian  will  general- 
ly be  protected  where  he  uses  such  care  as  would  be  exercised  by  a 
prudent  man  of  business  in  selecting  a  security  for  an  investment,  and 
not  for  speculation.®  "If  a  trustee  acts  with  good  faith,  and  a  sound 
discretion,  in  the  investment  of  trust  funds,  he  is  notr  to  be  held  re- 
sponsible for  any  loss  which  may  happen."  ^^  "All  that  can  be  re- 
quired of  a  trustee  to  invest  is  that  he  shall  conduct  himself  faithful- 
ly, and  exercise  a  sound  discretion.  He  is  to  observe  how  men  of  pru- 
dence, discretion,  and  intelligence  manage  their  own  affairs,  not  in 
regard  to  speculation,  but  in  regard  to  the  permanent  disposition  of 
their  funds,  considering  the  probable  income,  as  well  as  the  probable 
safety,  of  the  capital  to  be  invested."  ^^  When  a  guardian  is  appoint- 
ed in  a  state  which  is  not  his  ward's  domicile,  he  should  not,  in  ac- 
counting for  his  investments,  be  held  to  a  narrower  range  of  secu- 
rities than  is  allowed  by  the  law  of  the  domicile.*^ 

of  an  insane  ward,  the  court  saying:  "It  could  not  be  said  to  be  an  unreason- 
able expenditure  for  a  man  of  like  fortune  and  circumstances,  not  under 
guardiansliip ;  and  we  think  the  fact  of  guardianship  furnishes  no  sufficient 
groimd,  in  the  present  case,  for  its  disallowance." 

8  Wright  V.  Comley,  14  111.  App.  551 ;  March  v.  Bennett,  1  Vem.  428 ;  Wa- 
ters V.  Ebrall,  2  Vern.  606. 

»  Clark  V.  Garfield,  8  Allen  (Mass.)  427;  Harvard  CJoUege  v.  Amory,  9  Pick. 
(Mass.)  446;  Lovell  v.  Mlnot,  20  Pick.  (Mass.)  116,  32  Am.  Dec.  206;  Konig- 
macher  v.  Kimmel,  1  Pen.  &  W.  (Pa.)  207,  21  Am.  Dec.  374;  King  v.  Talbot, 
40  N.  Y.  76;  Nance  v.  Nance,  1  S.  C.  209;  Jack's  Appeal,  94  Pa.  307;  Gary  v. 
Cannon,  38  N.  C.  64. 

10  Clark  v.  Garfield,  8  Allen  (Mass.)  427;  Henderson  v.  Lightner,  92  S,  W. 
945,  29  Ky.  Law  Rep.  301 ;  Stevens  v.  Meserve,  73  N.  H.  293,  61  Atl.  420,  111 
Am.  St.  Rep.  612. 

11  Harvard  College  v.  Amory,  9  Pick.  (Maes.)  446. 

12  Lamar  v.  Micou,  112  U.  S.  452,  5  Sup.  Ct  221,  28  L.  Ed,  751;  Id.,  114 
U.  S.  218,  5  Sup.  Ct.  857,  29  L.  Ed.  94. 


§   175)  CARE   OP   REAL   ESTATE.  855 

SAME— CARE   OF   REAL   ESTATE. 

175.  A  guardian  must  lease  his  ward's  lands,  keep  the  buildings  in 
repair,  and  collect  the  rents.  But  he  has  no  authority  to  al- 
loiv  any  use  of  the  lands  ivhich  w^ould  amount  to  waste. 

The  guardian  may  lease  his  ward's  lands,  and  it  is  his  duty  to  do 
so,^^  and  to  collect  the  rents  therefrom.^*  His  authority  to  lease 
extends  only  for  the  term  of  the  ward's  minority,  and  a  lease  for  a 
longer  time  may  be  avoided  by  the  ward  on  becoming  of  age.^"*  The 
guardian's  control  over  the  ward's  land  extends  only  to  the  use  of 
the  same.  It  has  been  held  that  he  may  cut  growing  timber,  when 
such  use  does  not  amount  to  waste. ^'  But,  since  he  cannot  dispose 
of  his  ward's  real  estate  without  an  order  of  court,  his  lease  of  min- 
eral lands  for  development,  being  a  grant  of  part  of  the  corpus  of 
the  land,  would  be  without  authority.^ ^  If  the  guardian  occupies 
the  ward's  land  himself,  he  will  be  liable  for  rent,^^  as  well  as  for  any 
depreciation  caused  by  improper  cultivation.^®  He  must  keep  all  build- 
ings in  repair,  if  the  income  of  the  estate  is  sufficient,  and  for  loss 
of  rent  occurring  from  neglect  so  to  do,^°  as  well  as  for  injury  there- 
by resulting  to  the  property,^ ^  he  will  be  liable. 

13  Rex  V.  Oakley,  10  East,  494;  Emerson  v.  Spicer,  46  N.  T.  594;  Richard- 
son V.  Richardson,  49  Mo.  29 ;  Hughes'  Minors'  Appeal,  53  Pa.  500 ;  Wills' 
Appeal,  22  Pa.  329;  Palmer  v.  Cheseboro,  55  Conn.  114,  10  Atl.  508;  Clark 
V.  Bm-nside,  15  111.  62.  By  statute,  in  some  states,  he  must  first  obtain  leave 
of  court    See  Alexander  v.  Buffington,  06  Iowa,  360,  23  N.  W.  754. 

14  Wills'  Appeal,  22  Pa.  329;  Taylor  v.  Kellogg,  103  Mo.  App.  258,  77  S.  W. 
130 ;  Bond  v.  Lockwood,  33  111.  212 ;  Griffin  v.  Collins,  125  Ga.  159,  53  S.  E. 
1004. 

15  Emerson  v,  Spicer,  46  N.  Y.  594;  Jackson  v.  O'Rorke,  71  Neb.  418,  98  N. 
W.  1068.  Under  the  Kentucky  statute  (Ky.  St.  1903,  §  2031)  a  guardian  may 
lease  the  ward's  land  until  the  latter  shall  arrive  at  full  age,  provided  the 
lease  is  not  for  a  longer  term  than  seven  years.  Cumberland  Pipe  Line  Go.  v. 
Howard,  100  S.  W.  270,  30  Ky.  Law  Kep.  1179. 

18  Thompson  v.  Boardman,  1  Vt.  367,  18  Am.  Dec.  684;  Bond  v.  Lockwood, 
33  III.  212;  Torry  v.  Black,  58  N.  Y.  185. 

17  Stoughton's  Appeal,  88  Pa.  198;  Haskell  v.  Sutton,  53  W.  Va.  206,  44  S. 
E.  533.     And  see  Williams'  Case,  3  Bland  (Md.)  186. 

18  In  re  Otis,  34  Hun  (N.  Y.)  542;  Royston  v.  Royston,  29  Ga.  82;  Willis  v. 
Fox,  25  Wis.  646;  In  re  Tyler,  40  Mo.  App.  378. 

i»  Willis  V.  Fox,  25  Wis.  646. 

20  Smith  V.  Gummere,  39  N.  J.  Eq.  27. 

«i  Willis  V.  Fox,  25  Wis.  646. 


356  EIGHTS,  DUTIES,  AND   LIABILITIES  OF  GUARDIANS.  (Ch.  12 


SAME— SAI.E   OF   REAIi   ESTATE. 

176.  By  statnte,  guardians,  on  obtaining  license  from  the  conrt,  are 

generally  empowered  to  sell  their  wards'  lands  to  pay  debts, 
or  for  future  maintenance  and  expenses,  wbere  there  is  not 
sufScient  personal  property,  and  in  some  states  for  the  pur- 
pose  of  making  more  advantageous  investments. 

177.  Sales  without  license  from  the  court  are  void,  and  the  same  is 

true  where  the  court  granting  the  license  had  no  jurisdiction- 
Sales  made  in  pursuance  of  a  license  from  a  court  having  ju- 
risdiction,  though   irregular,   cannot   be   collaterally   attacked. 

Some  of  the  courts  have  held  that  a  court  of  chancery,  as  the  gen- 
eral guardian  of  infants  within  its  jurisdiction,  has  an  inherent  pow- 
er to  decree  a  sale  of  their  real  estate  whenever  it  is  for  their  advan- 
tage to  do  so,^*  but  the  weight  of  authority  is  to  the  contrary.^^  In 
most  states,  by  statute,  such  power  has  been  expressly  conferred,  sub- 
ject to  certain  restrictions,  either  upon  the  court  of  chancery,  or  up- 
on the  probate  or  other  similar  court.  In  some  states  power  is  giv- 
en to  mortgage  the  estate,  under  certain  circumstances.^*  The  stat- 
utes usually  authorize  sales  where  the  personal  property  is  insuffi- 
cient to  pay  the  debts  of  the  ward's  estate,  and  to  provide  for  his  fu- 
ture support  and  education  and  for  the  expenses  of  caring  for  his 
property,^"*  and  sometimes  sales  are  authorized  in  order  to  make  more 
advantageous  investments. 

22  In  re  Salisbury,  3  Johns.  Gh.  (N.  Y.)  347;  Huger  v.  Huger,  3  Desaus.  (S. 
G.)  18;  Stapleton  v.  Langstafif,  Id.  22;  Williams  v.  Harrington,  33  N.  G.  616, 
53  Am.  Dec.  421 ;  Ex  parte  Jewett,  16  Ala.  409 ;  Goodman  v.  Winter,  64  Ala. 
410,  38  Am.  Rep.  13. 

33  Taylor  v.  Philips,  2  Ves.  Sr.  23;  Galvert  v.  Godfrey,  6  Beav.  97;  Field  v. 
Moore,  25  Law  J.  Ch.  66;  Rogers  v.  Dill,  6  Hill  (N.  Y.)  415;  Baker  v.  Lorll- 
lard,  4  N.  Y.  257;  Williams'  Case,  3  Bland  (Md.)  186  (but  see  Roche  v.  Wa- 
ters, 72  Md.  264,  19  Atl.  535,  7  L.  R.  A.  533);  Pierce's  Adm'r  v.  Trigg's  Heirs, 
10  Leigh  (Va.)  406;  Faulkner  v.  Davis,  18  Grat.  (Va.)  651,  98  Am.  Dec.  698. 

2  4  U.  S.  Mortgage  Co.  v.  Sperry,  138  U.  S.  313,  11  Sup.  Ct.  321.  34  L.  Ed. 
969.  The  Missouri  statute  (Rev.  St.  1899,  §  3504  [Ann.  St.  1906,  p.  2000])  au- 
thorizes the  guardian  to  mortgage  the  ward's  realty  to  obtain  money  for  the 
education  and  maintenance  of  the  ward.  It  was  held,  in  Capen  v.  Garrison, 
193  Mo.  335,  92  S.  W.  368,  5  L.  R.  A.  (N.  S.)  838,  that  authority  to  raise  by 
mortgage  money  to  discharge  a  pre-existing  incimibrance  could  not  be  implied. 
But  see  Stokes  v.  Payne,  58  Miss.  614,  38  Am.  Rep.  340,  and  Davidson  v. 
Wampler,  29  Mont.  61,  74  Pac.  82,  to  the  effect  that  the  power  to  sell  does  not 
include  the  power  to  mortgage. 

26  Faulkner  v.  Davis,  18  Grat  (Va.)  651,  98  Am.  Dec.  698. 


§§    176-177)  SALE    OF    REAL    ESTATE.  357 

The  contract  of  a  guardian  to  sell  his  ward's  real  estate,  or  a  sale 
and  conveyance  thereof  by  him,  without  an  order  of  court,  is  an  ab- 
solute nullity,  for  a  guardian  has  no  authority  to  dispose  of  the  real 
estate  of  his  ward,  unless  by  order  of  court.^®  "An  instrument  con- 
veying land  of  minors,  signed  by  one  representing  himself  to  be  their 
guardian,  is  wholly  inoperative  without  the  production  of  the  prece- 
dent orders  of  a  court  of  competent  jurisdiction  in  the  premises,  and 
therefore  inadmissible  as  evidence  against  them.  Courts  will  not 
presume  the  existence  of  authority  to  act,  in  such  cases,  in  the  ab- 
sence of  all  proof  of  the  existence  of  the  power,  and  its  loss  or  de- 
struction, even  after  the  lapse  of  thirty  years."  *^  An  order  of  the 
court  being  necessary  to  authorize  a  guardian  to  sell  and  convey  his 
ward's  real  estate,  it  follows  that  the  sale  and  conveyance  must  be 
in  strict  compliance  with  the  order;  otherwise  it  is  just  as  much 
without  authority  as  if  there  were  no  order  of  court  at  all."  Unless 
it  is  otherwise  provided  by  statute,  the  court  cannot  authorize  a  nat- 
ural guardian,  as  such,  to  dispose  of  his  ward's  real  estate.  The  guar- 
dian must  be  a  duly  appointed  guardian  of  the  ward's  estate,  and  he 
must  have  qualified  as  such.^^  And,  a  fortiori,  the  court  cannot  au- 
thorize a  sale  by  some  third  person.^" 

A  sale  made  under  the  order  of  a  court  having  no  jurisdiction  in 
the  premises  is  an  absolute  nullity,  and  may  be  attacked  in  any  way 
and  at  any  time.^^  But  when  the  court  has  jurisdiction  a  sale  made  in 
pursuance  of  its  license  cannot  be  attacked  collaterally  for  irregulari- 
ties.*2    The  courts  do  not  agree  as  to  what  requirements  of  the  stat- 

2  6  Worth  V.  Curtis,  15  Me.  228;  Le  Roy  v.  Jacobosky,  136  N.  C.  443,  48  S. 
E.  796,  67  L.  R.  A.  977 ;  Gault  Lumber  Co.  v.  Pyles  (Okl.)  92  Pac.  175 ;  Ayer 
&  Lord  Tie  Co.  v.  Witherspoon's  Adm'r,  100  S.  W.  259,  30  Ky.  Law  Rep.  1067 ; 
Thacker  v.  Hendersou,  63  Barb.  (N,  Y.)  271;  Morrison  v.  Kinstra,  55  Miss. 
71 ;  Gaylord  v.  Stebbins,  4  Kan.  42 ;  Downing  v.  Peabody,  56  Ga.  40 ;  Ex  parte 
Kirkman,  3  Head  (Teuu.)  517;  Mason  v.  Wait,  4  Scam.  (111.)  127;  Wells  v. 
Chaffin,  60  Ga.  677;  House  v.  Brent,  69  Tex,  27.  7  S,  W,  65 ;  Shamleffer  v. 
Mill  Co.,  18  Kan.  24 ;  Washabaugli  v.  Hall,  4  S.  D.  168,  56  N.  W.  82. 

2  7  House  V.  Brent,  69  Tex.  27,  7  S.  W.  65. 

2  8  Cox  V.  Manvel,  56  Minn.  338,  57  N.  W.  1062.  As  to  purchase  by  guard- 
Ian  at  sale  of  ward's  property,  see  ante,  p.  340. 

29  Shanks  v.  Seamonds,  24  Iowa,  131,  92  Am.  Dec.  465;  Myers  v.  McGavock, 
39  Neb.  843,  58  N.  W.  522,  42  Am.  St.  Rep.  627. 

80  Paty  V.  Smith,  50  Cal.  153 ;  McKee  v.  Thomas,  9  Kan.  343. 

31  Wells  V.  Steckleberg,  52  Neb.  670,  70  N.  W;  242. 

8  2Beachy  y.  Shomber,  73  Kan.  02,  84  Pac.  547;  Fuller  v.  Hager.  47  Or. 
242,  83  Pac.  782,  114  Am.  St.  Rep.  916;  Field  v.  Peeples,  180  111.  376,  54  N. 


358  RIGHTS,  DUTIES,  AND   LIABILITIES  OF   GUARDIANS.  (Ch.  12 

utes  are  jurisdictional.''  The  provision  of  the  statutes  in  the  various 
states  are  generally  uniform  in  requiring  the  guardian  to  execute  a 
special  bond  binding  him  to  make  the  sale  honestly,  and  to  account 
for  the  application  of  the  proceeds  in  accordance  with  the  objects  for 
which  the  license  was  granted.  In  most  states  failure  to  give  the 
bond  is  held  to  be  jurisdictional,  and  to  render  the  sale  absolutely 
void,'*  but  in  some  states  it  is  held  that  such  a  failure  will  not  ren- 
der the  sale  open  to  attack  in  a  collateral  proceeding.'"  The  same 
variance  exists  in  the  decisions  of  the  different  states  as  to  the  neces- 
sity of  giving  notice  to  the  ward.  By  the  weight  of  authority,  such 
notice  is  held  not  to  be  jurisdictional,  on  the  theory  that  the  proceed- 
ing is  purely  in  rem.'®  The  court  of  a  county  where  a  ward  has  real 
estate  may  license  a  foreign  guardian  to  sell,  when  he  has  complied 
with  the  state  laws  regarding  foreign  guardians,  though  the  ward  is 
a  nonresident.'^ 

E.  304;  Davidson  v.  Hutchins,  112  Ind.  322,  13  N.  E.  106;  Hubermann  v. 
Evans,  46  Neb.  784,  65  N.  W.  1045. 

33  Compare  Fuller  v.  Hager,  47  Or.  2i2,  83  Pac.  782,  114  Am.  St  Rep.  916. 
and  Bachelor  v.  Korb,  58  Neb.  122,  78  N.  W.  485,  76  Am.  St.  Rep.  70,  as  to 
the  necessity  of  oath  by  the  guardian.  And  see  Fender  v.  Powers,  67  Mich. 
433,  35  N.  W.  SO. 

3*  Williams  v.  Morton,  38  Me.  47,  61  Am.  Dec.  229;  Tracy  v.  Roberts,  88 
Me.  310,  34  Atl.  68,  51  Am.  St.  Rep.  394 ;  Blauser  v.  Diehl,  90  Pa.  350 ;  Stewart 
V.  Bailey,  28  Mich.  251;  McKeever  v.  Ball,  71  Ind.  398;  Phillips  v.  Spalding's 
Guardian,  102  S.  W.  1193,  31  Ky.  Law  Rep.  579;  Barnett  v.  Bull,  81  Ky.  127; 
Vanderburg  v.  Williamson,  52  Miss.  233: 

36  Arrowsmith  v.  Harmoning,  42  Ohio  St.  254;  Howbert  v.  Heyle,  47  Kan. 
58,  22  Pac.  116 ;  Watts  v.  Cook,  24  Kan.  278 ;  McKiuney  v.  Jones,  55  Wis.  39, 
11  N.  W.  606,  and  12  N.  W.  381 ;  Bunco  v.  Bunce,  59  Iowa,  533,  13  N.  W.  705. 
But  see  Weld  v.  Johnson  Mfg.  Co.,  84  Wis.  537,  54  N.  W.  335,  998. 

36  Mohr  V.  Manierre,  101  U.  S.  417,  25  L.  Ed.  1052;  Thaw  v.  Ritchie,  136 
U.  S.  519,  10  Sup.  Ct.  1037,  34  L.  Ed.  531;  Furr  v.  Burns,  124  Ga.  742,  53 
S.  E.  201 ;  Dexter  v,  Cranston,  41  Mich.  448,  2  N.  W.  674 ;  Williams  v.  Wil- 
liams, 18  Ind.  345;  Doe  v.  Jackson,  51  Ala.  514;  Myers  v.  McGavock,  39  Neb. 
843,  58  N.  W.  522,  526,  42  Am.  St.  Rep.  627;  Mohr  v.  Porter,  51  Wis.  487,  8 
N.  W.  364;  Mason  v.  Wait,  4  Scam.  (111.)  127;  Mulford  v.  Beveridge,  78  111. 
455 ;  Spring  v.  Kane,  86  111.  580.  But  see  Musgrave  v.  Conover,  85  111.  374. 
Contra,  Beachy  v.  Shomber,  73  Kan.  62,  84  Pac.  547 ;  Rule  v.  Broach,  58  Miss. 
552;  Rankin  v.  Miller,  43  Iowa,  11 ;  Mohr  v.  Tulip,  40  Wis.  66  (overruled 
by  Mohr  v.  Porter,  supra) ;  Tracy  v.  Roberts,  88  Me.  310,  34  Atl.  68,  51  Am. 
St.  Rep.  394. 

3  7  Menage  v.  Jones,  40  Minn.  254,  41  N.  W.  972;  West  Duluth  Land  Co. 
V.  Kurtz,  45  Minn.  380,  47  N.  W.  1134;  Myers  v.  McGavock,  39  Neb.  843,  58 
N.  W.  522,  42  Am.  St  Rep.  627;  Bouldin  v.  Miller  (Tex.  Civ.  App.)  26  S 
W.  133. 


§    179)  POWER   TO    EXECUTE   INSTRUMENTS.  359 


SAME— SALE    OF   PERSONAI.   PROPERT7. 

178.   A  guardian  may  sell  Iiis  xrard'a  personal  property  w^itboat  leave 
of  court. 

It  is  within  the  scope  of  the  guardian's  authority  to  sell  his  ward's 
personal  property  without  first  obtaining  leave  of  court,'^  except 
when  he  is  restricted  by  some  statutory  provision.^"  A  guardian 
ought  not  to  sell  his  ward's  personal  property  unless  the  proceeds  are 
needed  for  the  due  execution  of  the  trust,  or  unless  he  can,  by  the 
sale,  produce  some  advantage  to  the  estate.  Even  where  he  sells  it 
improperly,  however,  the  purchaser  will  acquire  a  good  title,  if  there 
is  innocence  and  good  faith  on  his  part.  "Having  the  power  [to 
sell]  without  obtaining  any  special  license  or  authority,  a  title  un- 
der him,  acquired  bona  fide  by  the  purchaser,  will  be  good;  for  the 
purchaser  cannot  know  whether  the  power  has  been  executed  with 
discretion  or  not,  and  the  estate  is  always  supposed  to  be  secure  by 
the  bond  given  by  the  guardian  for  the  faithful  execution  of  his  trust, 
and  discreet  management  of  the  property."  *• 


SAMB— POWER  TO   EXECUTE   INSTRUMENTS. 

179.  Guardians  can  execute  all  instruments  tvliicli  are  necessary  in 
tlie  scope  of  their  trust,  but  cannot  bind  tbe  ward  or  his  es- 
tate by  covenants. 

Guardians  have  authority  to  execute  all  instruments  which  are  nec- 
essary, within  the  scope  of  the  trust.  Thus,  when  a  guardian  has 
been  authorized  by  court  to  sell  real  estate,  he  may  execute  a  convey- 
ance of  the  same.*^     His  authority  is  limited,  however,  to  the  trans- 

88  2  Kent,  Comm.  228;  Field  v.  Schieffelin,  7  Johns.  Ch.  (N.  Y.)  150,  11 
Am.  Dec.  441;  Cabbie  v.  Cabbie,  111  App.  Div.  426,  97  N.  Y.  Supp.  773;  Ellis 
V.  Proprietors,  2  Pick.  (Mass.)  243;  Hunter  v.  Lawrence's  Adm'r,  11  Grat. 
(Va.)  Ill,  62  Am.  Dec.  640;  Humphrey  v.  Buisson,  19  Minn.  221  (Gil.  1S2) ; 
Wallace  v.  Holmes,  9  Blatchf.  67,  Fed.  Cas.  No.  17,100.  The  rule  is  otherwise 
in  some  states  as  to  real  estate  mortgages.  McDuffie  v.  Mclntyre,  11  S.  C. 
551,  32  Am.  Rep.  500. 

89  Hendrix  v.  Richards,  57  Neb.  794,  78  N.  W.  878. 

40  Ellis  V.  Proprietors,  2  Pick.  (Mass.)  243.  And  see  the  other  cases  above 
cited. 

41  Whiting  V.  Dewey,  15  Pick.  (Mass.)  428;  State  v.  Clark,  28  Ind.  138;  Byrd 
V.  Turpin,  62  Ga.  591 ;  Young  v.  Lorain,  11  111.  625,  52  Am.  Dec.  463. 


360  RIGHTS,  DUTIES,  AND   LIABILITIES  OF  GUARDIANS.  (Ch.  12 

fer  of  the  title.  He  cannot  bind  his  ward  by  covenants,  but  will  be 
personally  bound  by  any  covenants  therein  contained.**  A  guardian, 
on  receiving  payment  of  a  mortgage,  has  authority  to  discharge  it 
of  record."  He  can  make  a  binding  contract  for  the  extension  of 
the  mortgage,**  or  assign  it,*'  and,  on  breach  of  condition,  may  fore- 
close.*' 

FOREIGN   GUARDIANS. 

180.  A  guardian's  anthority  is  strictly  territorial,  bnt  foreign  guard- 
ians are  recognized,  in  most  states,  as  a  matter  o£  oomity,  on 
compliance  iritli  certain  statutory  regulations. 

The  authority  of  a  guardian  is  confined  to  the  county  or  state 
of  his  appointment.  His  rights  are  strictly  territorial,  and  unless  his 
appointment  is  recognized,  as  a  matter  of  comity,  by  a  sister  state 
or  foreign  country,  he  has  no  extraterritorial  rights  in  regard  to  the 
person  or  property  of  his  ward.*^  The  authority  of  a  foreign  guard- 
ian is  sometimes  recognized,  as  a  matter  of  comity,**  and  if  a  new 


*2  Whiting  V.  Dewey,  15  Pick.  (Mass.)  428;  Young  v.  Lorain,  11  111.  625, 
52  Am.  Dec.  463;  Holyoke  v.  Clark,  54  N.  H.  578.  But  no  implied  covenants 
arise  in  a  lease  by  a  guardian.    Webster  v.  Conley,  46  111.  13,  92  Am.  Etec.  234. 

43  Chapman  v.  Tibbits,  33  N.  Y.  2S9;  Riddell  v.  Vizard,  35  La.  Ann.  310; 
Perkins  v.  Dyer,  6  Ga.  401.  Contra,  Freiberg  v.  De  Lamar,  7  Tex.  Civ.  App. 
263,  27  S.  W.  151.  But  a  mortgage  given  by  a  guardian  to  his  ward  cannot 
be  satisfied  by  the  guardian  without  authority  of  court,  and  payment  of  the 
debt.    Jennings  v.  Jennings,  104  Cal.  150,  37  Pac.  794. 

*i  Willick  V.  Taggart,  17  Hun  (N.  Y.)  511. 

4  6  Field  V.  Schieffelin,  7  Johns.  Ch.  (N.  Y.)  150,  11  Am.  Dec.  441 ;  Humphrey 
V.  Buisson,  19  Minn.  221  (Gil.  182).  Contra,  Mack  v.  Brammer,  28  Ohio  St. 
508. 

46  Taylor  v.  Hite,  61  Mo.  142.  A  guardian  has  authority  to  redeem  from  a 
foreclosure.    Marvin  v.  Schilling,  12  Mich.  356. 

4  7  Story,  Coufl.  Laws,  §§  492-529;  Whart.  Confl.  Laws,  §§  209-268;  Ex  parte 
Watkins,  2  Ves.  Sr.  470 ;  Hoyt  v.  Sprague,  103  U.  S.  613,  26  L.  Ed.  585 ;  Rice's 
Case,  42  Mich.  528,  4  N.  W.  284;  Weller  v.  Suggett,  3  Redf.  Sur.  (N.  Y.)  249; 
McLoskey  v.  Reid,  4  Bradf.  Sur.  (N.  Y.)  3.34 ;  Rogers  v.  McLean,  31  Barb.  (N. 
Y.)  304  (but  see  Freund  v.  Washburn,  17  Hun  IN.  Y.]  543);  Kraft  v.  Wickey, 
4  Gill  tS:  J.  (Md.)  332,  23  Am.  Dec.  560;  Leonard  v.  Putnam,  51  N.  H.  247,  12 
Am.  Rep.  106 ;  Grist  v.  Forehand,  36  Miss.  G9 ;  Burnet  v.  Burnet,  12  B.  Mon. 
(Ky.)  323 ;  In  re  Nickals,  21  Nev.  462,  34  Pac.  250. 

4  8  Savini  v.  Lousada,  22  Law  T.  (N.  S.)  61;  Nugent  v.  Vetzera,  L.  R.  2  Eq. 
704 ;  Stuart  v.  Bute,  9  H.  L.  Cas.  440 ;  In  re  Crosswell's  Petition.  28  R.  I.  137, 
66  Atl.  55;  Woodworth  v.  Spring,  4  Allen  (Mass.)  321;  Earl  v.  Dresser,  30  Ind. 


§§    181-183)  INVENTORY    AND   ACCOUNTS.  361 

appointment  is  required  the  claims  o'f  the  foreign  guardian  to  the  of- 
fice will  generally  be  respected.**  In  many  states  there  are  statutory 
regulations  authorizing  a  foreign  guardian  to  act  on  complying  with 
certain  regulations, "^^  such  as  filing  a  certified  copy  of  his  appoint- 
ment, or  the  giving  of  a  bond,  and  in  some  states  he  must  first  take 
out  ancillary  letters  of  guardianship.  An  ancillary  guardian  is  not 
bound  to  account  in  the  foreign  state  for  funds  received  there,  but 
should  render  his  account  to  the  court  of  his  original  appointment.'* 


INVENTORY  AND  ACCOUNTS. 

181.  Gnardians   mnst   file    an   inventory   of   the   estate,    and    acconnt 

from  time  to  time,  and,  at  the  expiration  of  the  gn&^dian- 
ship,  must  render  a  final  acconnt. 

182.  A   final    account,   when   settled    and   alloxired   by    the   conrt,    can 

only  be  qnestioned  in  a  direct  proceeding  on  the  gronnd  of 
frand  or  mistake. 

183.  W^hen  the  same  person  is  executor  or  administrator  and  guard- 

ian, he  is  liable  primarily,  as  executor  or  administrator,  for 
funds  in  his  hands  due  his  ward  as  legatee  or  distributee, 
but  becomes  liable  as  guardian  on  charging  himself  in  that 
capacity. 

It  is  the  duty  of  the  guardian  to  file  an  inventory  of  the  proper- 
ty of  the  estate,  prepared  by  disinterested  persons,  and  to  render  ac- 
counts, from  time  to  time,  usually  annually.  Neither  the  invento- 
ry "^^  nor  such  accounts  ^^  are  conclusive  as  to  the  facts  therein  set 
forth,  but  are  prima  facie  correct,  as  against  the  guardian  and  his 

11,  95  Am.  Dec.  660 ;  Marts  v.  Brown,  56  Ind.  386;  Wells  v.  Andrews,  60  Miss. 
873;  Sims  v.  Renwick,  25  Ga.  58. 

4  9  In  re  Crosby,  42  Wash.  366,  85  Pac.  1 ;  Grimmett  v.  WItherlngton,  16  Ark. 
377,  G3  Am.  Dec.  66 ;  Earl  v.  Dresser,  30  Ind.  11,  95  Am.  Dec.  660. 

0  0  Rice's  Case,  42  Mich.  528,  4  N.  W.  284;  Hoyt  v.  Sprague,  103  U.  S.  613, 
26  L.  Ed.  585 ;  Watt  v.  Allgood,  62  Miss.  38. 

61  Smoot  V.  Bell,  3  Cranch,  C.  C.  343,  Fed.  Cas.  No.  13,132, 

62  Bourne  v.  Maybin,  3  Woods,  724,  Fed.  Cas.  No.  1,700;  State  v.  Stewart, 
36  Miss.  652;  Green  v.  Johnson,  3  Gill  &  J.  (Md.)  389. 

B 3  Douglas'  Appeal,  82  Pa.  169;  Prindle  v.  Holcomb,  45  Conn.  Ill;  Guard- 
ianship of  Cardwell,  55  Cal.  137;  Diaper  v.  Anderson,  37  Barb.  (N.  Y.)  168. 


362  RIGHTS,  DUTIES,  AND   LIABILITIES  OP  GUARDIANS.  (Ch.  12 

sureties,'*  or  against  any  one  else  who  disputes  their  correctness." 
At  the  expiration  of  his  term  of  office  the  guardian  must,  in  accord- 
ance with  his  general  duty,  as  well,  usually,  as  by  the  express  pro- 
visions of  his  bond,  render  a  final  account,  and  he  may  be  brought 
into  court  for  that  purpose."'  This  account,  when  settled  and  allow- 
ed by  the  court,  is,  by  the  weight  of  authority,  conclusive,  as  against 
all  parties,  ^'^  when  attacked  collaterally,  and  can  only  be  questioned 
in  a  direct  proceeding  brought  for  that  purpose,  on  the  ground  of 
fraud  or  mistake."*^ 

When  a  person  is  both  executor  or  administrator  and  guardian, 
and  receives  funds  to  which  his  ward  is  entitled  as  legatee  or  dis- 
tributee, he  is  not  liable  in  both  capacities  at  once.***  He  must  pri- 
marily account  for  such  funds  as  executor  or  administrator,  and  re- 
mains liable  as  such  until  a  settlement  in  such  capacity,  in  which  he 
is  credited  with  the  funds  as  executor  or  administrator,  and  charged 
as  guardian.^"     But  after  the  expiration  of  a  reasonable  time,  some- 


8  4  Davis  V.  Combs,  38  N.  J.  Eq.  473;  State  v.  Jones,  89  Mo.  470,  1  S.  W. 
355 ;  Bond  v.  Lockwood,  33  111.  212 ;  State  v.  Stewart,  36  Miss.  652 ;  Sanders 
V.  Forgtisson,  3  Baxt.  (Tenn.)  249 ;  In  re  Heath's  Estate,  58  Iowa,  36,  11  N.  W. 
723;  and  cases  cited  in  notes  52  and  53,  supra. 

8  8  CJoggins  V.  Flytlie,  113  N.  C.  102,  18  S.  E.  96. 

86  Gilbert  v.  Guptill,  34  111.  112;  Succession  of  Guillebert,  117  La.  372,  41 
South.  654;  Walls'  Appeal,  104  Pa.  14;  Say's  Ex'rs  v.  Barnes,  4  Serg.  &  R. 
(Pa.)  112,  8  Am.  Dec.  679;  Wade  v.  Lobdell,  4  Cush.  (Mass.)  510;  Stark  v. 
Gamble,  43  N.  H.  465.  Where  the  ward  dies  before  settlement,  the  account- 
ing must  be  with  the  ward's  representative.  Livermore  v.  Rattl,  150  Cal.  458, 
89  Pac.  327. 

6T  Allman  v.  Owen,  31  Ala.  167;  McCleary  v,  Menke,  109  111.  294;  Candy  v. 
Hanmore,  76  Ind.  125 ;  State  v.  Leslie,  83  Mo.  60 ;  King  v.  King,  40  Iowa,  120 ; 
Brodrib  v.  Brodrib,  56  Cal.  563.  Contra,  Henley  v.  Robb,  86  Tenn.  474,  7  S. 
W.  190;  Campbell  v.  Williams,  3  T.  B.  Mon.  (Ky.)  122;  Bourne  v.  Maybin,  3 
Wood,  724,  Fed.  Cas.  No.  1,700 ;  State  v.  Miller,  44  Mo.  App.  118. 

6  8  Cummings  v.  Cummings,  128  Mass.  532;  State  v.  Leslie,  S3  Mo.  60;  Reed 
V.  Ryburn,  23  Ark.  47;  McDow  v.  Brown,  2  S.  O.  95;  Yeager's  Appeal,  34  Pa. 
173. 

8  9  Wren  v.  Gay  den,  1  How.  (Miss.)  365.  But,  in  case  of  his  failure  to  duly 
collect  snch  funds  as  guardian,  the  sureties  on  his  bond  as  guardian  may  also 
become  liable  therefor.    Harris  v.  Harrison,  78  N.  C.  202. 

60  Conkey  v.  Dickinson,  13  Mete.  (Mass.)  51;  Burton  v.  Tunnell,  4  Har. 
(Del.)  424;  Alston  v.  Munford,  1  Brock.  266,  Fed.  Cas.  No.  267;  Weaver  v. 
Thornton,  63  Ga.  655.  His  liability  as  guardian  has  been  held  to  arise  from 
the  time  he  charged  himself  as  such,  without  obtaining  any  order  of  court, 
or  making  a  formal  settlement.     In  re  Scott's  Account,  36  Vt.  297.     And  see 


§    184)  COMPENSATION   OF   GUARDIAN.  363 

times  determined  by  the  time  limited  by  law  for  the  settlement  of 
estates,  it  will  be  presumed  that  he  has  transferred  the  funds,  and 
holds  them  in  his  capacity  as  guardian.®^  Such  presumption  may  be 
rebutted  where  the  question  arises  as  to  liability  on  his  executor's 
or  administrator's  bond.*^  The  intention  to  charge  himself  as  guard- 
ian may  be  inferred  from  his  acts  in  regard  to  the  property  in  his 
hands.®' 

COMPENSATION   OF    GUARDIAN. 

184.  When  a  grnardian  has  faithfully  executed  his  trust,  hut  not 
other'orise,  he  ivill  he  allo\ired  compensation  for  his  services, 
in  the  settlement  of  his  accounts. 

In  England  guardians  receive  no  compensation  for  their  services, 
but  in  this  country  the  rule  is  otherwise.  The  rules  are  different 
in  the  various  states,  but  ordinarily  guardians  receive  a  certain  per- 
centage or  commission  on  receipts  and  disbursements,  the  rate  be- 
ing established  either  by  statute  or  by  the  court.  In  some  states  no 
regular  percentage  is  established,  but  the  court  allows  what  is  rea- 
sonable."* For  any  specific  services  rendered  by  the  guardian, 
apart  from  the  general  management  of  the  estate,  a  reasonable  al- 
lowance in  addition  to  his  percentage  will  ordinarily  be  made,  to  be 
determined  by  the  importance  and  difficulty  of  the  services.®*     But 

In  re  Brown,  72  Hun,  IGO,  25  N.  Y.  Supp.  694 ;  State  v.  Branch,  112  Mo.  601, 
20  S.  W.  693.  Where  a  legacy  is  payable  at  a  future  date,  the  executor  can- 
not render  the  sureties  on  his  bond  as  guardian  liable  by  prematurely  charging 
himself  as  guardian.     S\vope  v.  Chambers,  2  Grat.  (Va.)  319. 

«i  Watkins'  Adm'rs  v.  State,  2  Gill  &  J.  (Md.)  220;  Karr's  Adm'r  v.  Karr, 
6  Dana  (Ky.)  3;  Townsend  v.  Tallant,  33  Cal.  45,  91  Am.  Dec.  617;  In  re  Wood, 
71  Mo.  623;  Johnson  v.  Johnson,  2  Hill,  Eq.  (S.  C.)  277,  29  Am.  Dec.  72;  Wil- 
son V.  Wilson,  17  Ohio  St.  150,  91  Am.  Dec.  125. 

0  2  Wilson  V.  Wilson,  17  Ohio  St.  150,  91  Am.  Dec.  125. 

«3  Drane  v.  Bayliss,  1  Humph.  (Tenn.)  174 ;  Adams  v.  Gleaves,  10  Lea 
(Tenn.)  367;  Swope  v.  Chambers,  2  Grat.  (Va.)  319;  Tittman  v.  Green,  108  Mo. 
22,   18   S.    W.   885. 

64  May  V.  May,  109  Mass.  252;  McElhenny's  Appeal,  46  Pa.  347;  In  re  Roberts, 
.  3  Johns.  Ch.  (N.  Y.)  43;  State  v.  Foy,  65  N.  C.  265;  Hughes  v.  Smith,  2 
Dana  (Ky.)  251;  Ilolcombe  v.  Holcombe's  Ex'rs,  13  N.  J.  Eq.  415;  Knowlton 
V.  Bradley,  17  N.  H.  458,  43  Am.  Dec.  609. 

6B  May  V.  May,  109  Mass.  252;  McElhenny's  Appeal,  46  Pa.  347;  Spath's 
Estates,  144  Pa.  383,  22  Atl.  749;  Emerson,  Appellant,  32  Me.  159;  Evarts 
V.  Nason,  11  Vt.  122. 


3G4  RIGHTS,  DUTIES,  AND   LIABILITIES   OF   GUARDIANS.  (Ch.  12 

compensation  in  the  nature  of  a  commission  on  reinvestments  of 
money  and  repairs  has  been  refused  on  the  ground  that  it  is  in  con- 
flict with  the  true  nature  and  purpose  of  the  trust  that  the  guardian 
should  be  a  gainer  by  increasing  the  amount  of  expenditures  through 
frequent  changes  of  investments,  or  by  repairs.""  Commissions  are 
allowed  a  guardian  as  compensation  for  the  performance  of  his  du- 
ty, and  when  he  has  failed  in  such  performance  the  court  will  not  al- 
low him  any  compensation  at  all."^ 

SETTLEMENTS    OUT    OF    COURT— GIFTS    FROM   WARD. 

185.  The   final   settlement   of   a   guardian's    account,    made   with    the 

ward  out  of  court,  wherehy  the  guardian  gains  any  advantage, 
will  be  set  aside,  unless  it  appears  that  the  ward  has  given 
his  deliberate,  intelligent,  voluntary  acquiescence,  or  is  gjuilty 
of  laches  in  asserting  his  rights. 

186.  Gifts  from  a  ward  to  his  guardian,  made  during  the  guardian- 

ship, or  shortly  after  its  termination,  are  presumed  to  have 
been  made  under  undue  influence;  and,  to  uphold  them,  it 
must  be  shown  that  they  were  made  voluntarily  and  under- 
standingly. 

Any  arrangement  entered  into  between  a  guardian  and  his  ward, 
whereby  the  guardian  gains  an  advantage,  is  looked  upon  with  great 
suspicion  by  the  court;  and,  if  such  an  arrangement  is  to  stand,  it  is 
incumbent  on  the  guardian  to  show  that  he  has  dealt  with  his  ward 
exactly  as  a  stranger  would  have  done  who  was  without  the  knowledge 
of  the  ward's  affairs  possessed  by  him,  and  that  he  has  not  exercis- 
ed any  influence  which  he  may  have  acquired  over  the  mind  of  his 
ward,  to  his  own  advantage,  and  that  he  has  brought  everything  to 
his  ward's  knowledge   which  he  himself  knew."*     The  final   settle- 

«e  May  v.  May,  109  Mass.  252. 

67  state  V,  Richardson,  29  Mo.  App.  595;  In  re  Ward,  49  Misc.  Rep.  181, 
98  N.  Y.  Supp.  923;  Hescht  v.  Calvert,  32  W.  Va.  215,  9  S.  E.  87;  Topping  v. 
Windley,  99  N.  C.  4,  5  S.  E.  14;  In  re  Wolfe's  Estate  (Sur.)  2  N.  Y.  Supp. 
494;  Pyatt  v.  Pyatt,  44  N.'  J.  Eq.  491,  15  Atl.  421;  Appeal  of  Fish  (Pa.)  7  Atl. 
222;  State  v.  Gilmore,  50  Mo.  App.  353. 

6  8  Hall  V.  Turner's  Estate,  78  Vt.  62,  61  Atl.  763;  Hunter  v.  Atkins,  3  Mylne 
&  K.  113,  135;  Revett  v.  Harvey,  1  Sim.  &  S.  502;  Hylton  v.  Hylton,  2  Ves. 
Sr.  547;  Allfrey  v.  Allfrey,  11  Jur.  981.  The  burden  Is  on  the  guardian, 
though  he  is  the  parent  of  the  ward  and  the  settlement  is  made  a  few  days 
after  the  ward  arrived  at  full  age.  Baum  v.  Hartniann,  226  lU.  160,  80  N. 
E.  711,  117  Am.  St.  Rep.  246,  reversing  122  111.  App.  444. 


§§    185-186)  SETTLEMENTS   OUT    OF    COURT,  365 

ment  of  the  guardian's  account,  made  out  of  court,  or  his  purchase 
of  the  ward's  property  shortly  after  the  termination  of  the  guardian- 
ship, or  the  release  by  the  ward  of  any  claims  against  the  guardian, 
will  be  scrutinized  with  the  greatest  care  by  the  courts.®^  "In  a  court 
of  law,  the  moment  of  emancipation  from  legal  pupilage  is  the  moment 
of  absolute  power  and  unlimited  capacity.  This  court  extends  its 
watchfulness  further,  and  requires  that  a  discharge  to  the  guardian 
shall  not  be  precipitated ;  that  ample  time  shall  be  allowed  for  con- 
sultation and  inquiry ;  that  there  shall  be  a  full  exhibition  of  the  es- 
tate, and  of  its  administration.  And  it  requires  that  a  guardian  who 
settles  his  account  in  secret  shall  be  prepared  to  prove  that  he  has 
fully  complied  with  these  requisitions,  unless  he  can  shelter  himself 
under  a  positive  ratification — a  deliberate,  intelligent,  voluntary  ac- 
quiescence— or  such  a  flow  of  time  as  will  induce  the  court  to  re- 
fuse its  interposition."  ^°  While  every  reasonable  intendment  will 
be  made,  in  a  settlement,  in  favor  of  the  ward,  particularly  if  he  has 
made  allowances  in  the  guardian's  favor,  yet,  if  the  influence  of  the 
guardian  has  entirely  ceased,  such  settlement  and  the  release  of  the 
guardian  will  be  sustained,  when  made  voluntarily  on  the  part  of 
the  ward,  and  without  concealment  or  misrepresentation  by  the  guard- 
ian.^ ^    A  settlement  of  a  guardian's  final  account  in  a  probate  court, 

69  Griffin  v.  Collins,  122  Ga.  102,  49  S.  E.  827,  holding  tlaat  a  receipt  by  a 
ward  acquitting  the  guardian  in  full  of  all  claims  against  him  is  not  valid  if 
signed  before  the  tei'mination  of  guardianship.  See,  also,  Fidelity  Trust  Co. 
V.  Butler,  91  S.  W.  676,  28  Ky.  Law  Rep.  1268. 

7  0  Fish  V.  Miller,  Hoff.  Ch.  (N.  Y.)  267.  And  see  Voltz  v.  Voltz,  75  Ala. 
566;  Eberts  v.  Eberts,  55  Pa.  110;  Hall  v.  Cone,  5  Day  (Conn.)  543;  Stark 
V.  Gamble,  43  N.  H.  465;  Williams  v.  Powell,  36  N.  C  460;  Harris  v.  Carstar- 
phen,  69  N.  C.  416;  Carter  v.  Tice,  120  111.  277,  11  N.  B.  529;  Richardson  v. 
Linney,  7  B.  Mon.  (Ky.)  571;  Powell  v.  Powell,  52  Mich.  432,  18  N.  W.  203; 
Line  v.  Lawder,  122  Ind.  548,  23  N.  E.  758;  McConkey  v.  Cockey,  69  Md.  286, 
14  Atl.  465.  And  see  Wilson  v.  Fidelity  Trust  Co.,  97  S.  W.  753,  30  Ky.  Law 
Rep.  263.  The  ward  cannot  set  aside  a  conveyance  made  by  him  after  at- 
taining his  majority,  without  restoring  the  consideration  received  from  his 
guardian.  Wickiser  v.  Cook,  85  111.  68.  But  the  tender  of  the  amount  re- 
ceived by  him  is  not  a  condition  precedent.  Rist  v.  Hartner,  44  La.  Ann.  430, 
10  South.  759.  The  ward  must  act  promptly  in  avoiding  a  gift  or  conveyance 
to  his  guardian,  or  he  may  be  barred  by  his  laches.  Fielder  v.  Harbison.  93 
Ky.  482,  20  S.  W.  508 ;  Roth's  Estate,  150  Pa.  261,  24  Atl.  685 ;  In  re  Alexan- 
der's Estate,  156  Pa.  368,  27  Atl.  18;  Lataillade  v.  Orena,  91  Cal.  565,  27  Pac. 
924,  25  Am.  St.  Rep.  219 ;  Ela  v.  Ela,  84  Me.  423,  24  Atl.  893. 

"  Kirby  v.  Taylor,  6  Johns.  Ch.  (N.  Y.)  242;  Hawkins'  Appeal,  32  Pa.  263; 
SmJLh  V.  Davis,  49  Md.  470;  Davenport  v.  Olmstead,  43  Conn.  67;  Douglass 


366  RIGHTS,  DUTIES,  AND   LIABILITIES  OP  GUARDIANS.  (Ch.  12 

or  other  similar  court  of  statutory  jurisdiction,  may  likewise  be  set 
aside  in  equity  on  proof  of  actual  or  constructive  fraud." 

Gifts  from  a  ward  to  his  guardian,  made  during  the  continuance 
of  the  guardianship,  are  presumed  to  have  been  induced  by  undue 
influence,  and  will  be  set  aside  unless  they  are  shown  to  have  been 
entirely  voluntary,  and  to  have  been  clearly  understood  by  the  ward/^ 
In  a  leading  Vermont  case  ^*  it  was  held  that  mere  lapse  of  time  is  not 
sufficient  to  prove  a  ratification  of  the  gift,  unless  it  appears  also  that 
the  ward  knew  that  the  gift  was  invalid  and  could  be  set  aside,  and 
knowing  these  facts,  had  consented  for  an  unreasonable  time  that  the 
gift  might  stand  unquestioned,  and  that  such  consent  was  the  result  of 
his  free  and  intelligent  choice,  and  not  the  result  of  the  pressure  and 
influence  arising  out  of  the  confidential  relations  existing  between  the 
parties.  On  the  same  principle,  a  gift  or  conveyance  to  a  guardian 
made  by  the  ward  shortly  after  the  termination  of  the  guardianship 
is  prima  facie  presumed  to  have  been  made  under  undue  influence, 
and  will  be  set  aside  unless  shown  to  have  been  entirely  voluntary,  and 
made  by  the  ward  with  a  full  understanding  of  his  position  and  rights 
in  regard  to  his  property.^"* 

V.  Ferris,  138  N.  Y.  192,  33  N.  E.  1041,  34  Am.  St.  Rep.  435 ;  Condon  v.  Church- 
man, 32  111.  App.  317;  Davis  v.  Hagler,  40  Kan.  187,  19  Pac.  628.  But  a 
ward  will  not  be  bound  by  a  ratification  of  his  guardian's  accounts  made  in 
ignorance  of  material  facts.    Long  v.  Long,  142  N.  Y.  545,  37  N.  E.  486. 

7  2  Carter  v.  Tice,  120  111.  277,  11  N.  E.  529;  Douglass  v.  Low,  36  Hun  (N. 
Y.)  497;  Monnin  v.  Beroujon,  51  Ala.  196. 

T8  Bisp.  Elq.  §  234;  Wood  v.  Downes,  18  Ves.  120,  127;  Wade  v.  Pulsifer,  54 
Vt.  45;  Waller  v.  Armistead's  Adm'rs,  2  Leigh  (Va.)  11,  21  Am.  Dec.  594; 
Farmer's  Ex'r  v.  Farmer,  39  N.  J.  Eq.  211. 

7  4  Wade  V.  Pulsifer,  54  Vt.  45. 

T8  Hunter  v.  Atkins,  3  Mylne  &  K.  113;  Fidelity  Trust  Co.  v.  Butler,  91 
S.  W.  676,  28  Ky.  Law  Rep.  1268;  Berkmeyer  v.  Kellerman,  32  Ohio  St 
239,  30  Am.  Rep.  577;  Garvin's  Adm'r  v.  Williams,  50  Mo.  206;  Ashton  t. 
Thompson,  32  Minn.  25,  18  N.  W.  918;  Tucke  V.  Buchholz,  43  Iowa,  415. 


§    187)  TERMINATION  OF  GUARDIANSHIP.  367 


CHAPTER  XIII. 

TERMINATION   OF    GUARDIANSHIP— ENFORCING   GUARDIAN'S 

LIABILITY. 

187.  Termination  of  Guardianship. 

188.  Enforcement  of  Guardian's  Liability. 
189-191.    Guardians'  Bonds. 


TERMINATION    OF   GUARDIANSHIP. 

187.    Guardianship  is  terminated  in  the  following  wayit 
(a)    By  the  ward's  reaching  his  majority. 
Cb)    By  the  death  of  the  ward, 
(o)    By  the  death  of  the  gnardian. 

(d)  By  the  marriage   of  a  female  w^ard. 

(e)  Under  the  statntes  of  some  states,  by  the  marriage  of  a  female 

gnardian. 

(f)  By  the  resignation  of  the  gnardian,  if  he  is  permitted  to  resign. 

(g)  By  removal  of  the  gnardian  by  the  conrt,  w^hen  he  fails  to  per- 

form his  dnty,  or  when  he  is  unfit  for  the  position. 

Testamentary  guardianship,  unless  an  earlier  time  is  named  in  the 
appointment,^  and  chancery  ^  and  statute  '  guardianship,  all  termin- 
ate at  majority.  If,  however,  as  has  been  seen,  a  guardian  contin- 
ues to  manage  the  ward's  estate  after  his  majority,  without  making 
a  final  settlement,  this  will  constitute,  in  effect,  a  continuation  of 
the  guardianship.  It  will  constitute  him  a  quasi  guardian,  and  he 
must  account  for  all  transactions  on  the  same  principles  which  gov- 
ern his  acts  during  the  ward's  minority.*  On  the  death  of  the  ward, 
the  guardianship  necessarily  terminates,  and  the  guardian  has  no 
right  to  act  further  as  guardian,  or  to  administer  on  the  estate,  but 


1  Selby  V.  Selby,  2  Eq.  Gas.  Abr.  488 ;  Artliurs'  Appeal,  1  Grant,  Gas.  (Pa.) 
55. 

2  Eversley,  Dom.  Rel.  680. 

8  Bourne  v.  Maybin,  3  Wood,  724,  Fed.  Cas.  No.  1,700;  Probate  Judge  v. 
Stevenson,  55  Mich.  320,  21  N.  W.  348;  Stroup  v.  State,  70  Ind.  495;  People  v. 
Brooks,  22  111.  App.  594;  Overton  v.  Beavers,  19  Ark.  623,  70  Am.  Dec.  610. 
By  express  statutory  provision  in  some  states  it  terminates  earlier. 

*  Ante,  p.  321;  Mellish  v.  Mellish,  1  Sim.  &  S.  138;  Stinson  v.  Leary,  69  Wis. 
269,  34  N.  W.  63. 


368  TERMINATION   OF   GUARDIANSHIP.  (Cll.  13 

must  adjust  his  accounts  with  the  ward's  legal  representatives.*  Like- 
wise, on  the  guardian's  death,  his  executor  or  administrator  has  no 
authority  to  act  as  guardian,  but  must  settle  the  accounts  of  the  guard- 
ianship, and  pay  the  balance  to  the  succeeding  guardian."  Where 
there  are  joint  statute  ^  or  testamentary  »  guardians,  and  one  dies, 
the  survivor  continues  the  trust.  The  reason  is  that  the  trust  is 
coupled  with  an  interest.  "Letters  of  guardianship  create  a  trust, 
coupled  with  an  interest.  When  two  are  appointed,  and  one  of  them 
dies,  the  trust  survives.  It  is  so  when  administration  is  granted  to 
two.  The  law  is  the  same  as  to  joint  guardians  and  joint  adminis* 
trators."  *  The  guardianship  of  a  female  ward  is  terminated  by  her 
marriage/"  but  the  marriage  of  a  male  ward  does  not  end  the  guard- 
ianship.^^ At  common  law  the  marriage  of  a  female  guardian  in 
socage  had  the  effect  of  terminating  her  guardianship,  and  transfer- 
ring it  to  her  husband;**  but  the  marriage  of  a  female  testamentary 


8  Bean  v.  Bumpus,  22  Me.  549 ;  State  Fair  Ass'n  v.  Terry,  74  Ark.  149, 
85  S.  W.  87;  Norton  v.  Strong,  1  Conn.  65;  Ordway  v.  Phelps,  45  Iowa,  279; 
In  re  Colvin's  Estate.  3  Md.  Ch.  278;  Barrett  v.  Provincher,  39  Neb.  773,  .58 
N.  W.  292.  See,  also,  Livermore  v.  Rattl,  150  Cal.  458,  89  Pac.  327,  holding 
that,  where  the  ward  dies  before  settlement,  the  settlement  must  be  with 
the  ward's  legal  representative. 

6  Connelly  v.  Weatherly,  33  Ark.  658;  Armstrong's  Heirs  v.  Walkup,  12 
Grat.  (Va.)  608;  Peel  v.  McCarthy,  38  Minn.  451,  38  N.  W.  205,  8  Am.  St. 
Rep.  681;  Waterman  v.  Wright,  36  Vt  164;  Woodbury  v.  Hammond,  54  Me. 
332 ;  Gregg  v.  Gregg,  15  N.  H.  190. 

7  Pepper  v.  Stone,  10  Vt  427.  And  In  this  country  the  same  rule  applies 
to  chancery  guardians.  People  v.  Byron,  3  Johns.  Cas.  (N.  Y.)  53.  But  in 
England  it  is  otherwise.    Bradshaw  v.  Bradshaw,  1  Russ.  528. 

8  Eyre  v.  Countess  of  Shaftsbury,  2  P.  Wms.  103.  And,  when  one  declines 
to  act,  the  other  may  carry  on  the  trust.  Kevan  v.  Waller,  11  Leigh  (Va.) 
414,  36  Am.  Dec.  391 ;  In  re  Reynolds,  11  Hun  (N.  T.)  4L 

»  Pepper  v.  Stone,  10  Vt.  427. 

10  Bac.  Abr.  "Guardian,"  E;  Mendes  v.  Mendes,  1  Ves.  Sr.  89;  Bartlett  v. 
Cowles,  15  Gray  (Mass.)  445 ;  In  re  Whitaker,  4  Johns.  Ch.  (N.  Y.)  378;  In  re 
Brick's  Estate,  15  Abb.  Prac.  (N.  Y.)  12;  Porch  v.  Fries,  18  N.  J.  Eq.  204, 
Jones  V.  Ward,  10  Yerg.  (Tenn.)  100 ;  Barnet  v.  Com.,  4  J.  J.  Marsh.  (Ky.)  389  ; 
Nicholson  v.  Wilborn,  13  Ga.  467;  Carpenter  v.  Soloman  (Tex.  App.)  14  S.  W 
1074 ;  Shutt  v.  Carloss,  36  N.  0.  232 ;  Armstrong's  Heirs  v.  Walkup,  12  Grat 
(Va.)   608. 

112  Kent,  Comm.  226;  Mendes  v.  Mendes,  1  Ves.  Sr.  89;  In  re  Brick's  F> 
tate,  15  Abb.  Prac.  (N.  Y.)  12. 

12  Bac.  Abr.  "Guardian  and  Ward,"  E. 


g    187)  TERMINATION   OF   GUARDIANSHIP.  369 

guardian  did  not  have  this  effect.^"  It  has  been  held  that  the  mar- 
riage of  a  female  statute  guardian  does  not  terminate  the  guardian- 
ship,^* but,  by  statute  in  some  states,  it  is  otherwise.^"  In  some  ju- 
risdictions her  husband  becomes  a  joint  guardian  with  her.^" 

One  appointed  a  socage  guardian  could  not  refuse  the  office,^  ^  nor 
resign.^*  And  it  has  been  held  that  a  testamentary  guardian  has  no 
right  to  resign,^®  When  he  refuses  to  act,  however,  the  court  may 
appoint  a  successor.^"  Guardians  appointed  by  the  court  of  chan- 
cery cannot  resign  without  valid  grounds,  and  must  obtain  the  sanc- 
tion of  the  court.^^  Statute  guardians  are,  by  express  provision,  oft- 
en allowed  to  resign  their  office ;  and,  when  there  is  no  express  en- 
actment to  that  effect,  their  tender  of  resignation  is  sufficient  ground 
for  their  removal,  where  the  court  has  the  power  of  removal  for 
cause.*'  But  a  resignation,  if  accepted,  does  not  take  effect  until 
there  has  been  an  accounting  and  a  discharge  by  the  court  on  proper 
notice.^' 

Removal  of  Guardians. 

As  incident  to  its  general  jurisdiction  in  guardianship,  the  Court  of 
Chancery,  in  England,  has  the  power  to  remove  guardians  whom  it 
has  appointed ;  **  and,  while  testamentary  guardians  cannot  be  remov- 


18  Com.  Dig.  "Guardian,"  384;  Dillon  v.  Lady  Mount  Cashell,  4  Brown,  Pari. 
Cas.  306 ;  ante,  p.  819. 

1*  Leave!  v.  Bettis,  3  Bush  (Ky.)  74;  Cotton's  Guardian  v.  Wolf,  14  Bush 
(Ky.)  238;  In  re  Elgin's  Guardianship,  1  Tuck.  (N.  Y.)  97.  But  see  Swart- 
wout  V.  Swartwout,  2  Redf.  Sur.  (N.  Y.)  52. 

15  Carr  y.  Spannagel,  4  Mo.  App.  285;  Field  v.  Torrey,  7  Vt  372;  Swart- 
wout V.  Swartwout,  2  Redf.   Sur.  (N.  Y.)  52. 

16  Wood  V.  Stafford,  50  Miss.  370;  Martin  v.  Foster's  Ex'r,  38  Ala.  688. 

17  Eversley,  Dom.  Rel.  683;  Bedell  v.  Constable,  Vaughan,  177. 

18  St  Marlbridge,  52  Hen.  III.  c.  17. 

18  Spencer  v.  Earl  of  Chesterfield,  1  Amb.  146;  Young  t.  Lorain,  11  111.  625, 
52  Am.  Dec.  463. 

20  Spencer  v.  Earl  of  Chesterfield,  1  Amb.  146;  O'Keefe  v.  Casey,  1  Schoales 
&  L.  106;  McAlister  v.  Olmstead,  1  Humph.  (Tenn.)  210;  Ex  parte  Crumb,  2 
Johns.  Ch.  (N.  Y.)  439. 

21  Eversley,  Dom.  Rel.  684. 

2  2  Young  V.  Lorain,  11  111.  624,  52  Am.  Dec.  463;  Brown  v.  Huntsman,  32 
Minn.  466,  21  N.  W.  555.  The  court  may  appoint  a  successor.  Simpson  v. 
Gonzalez,  15  Fla.  9;  Lefever  v.  Lefever,  6  Md.  472. 

2  3  Wackerle  v.  People,  168  111.  250,  48  N.  E.  123 ;  Manning  v.  Manning,  61 
Ga.  737. 

24  Eversley,  Dom.  Rel.  684. 

TirF.P.&  D. Rel. (2d  Ed.)— 24 


370  TERMINATION   OF   GUARDIANSHIP.  (Ch.  13 

ed,  they  may  be  superseded  and  restrained  from  interfering  with  the 
infant's  person  or  estate.'^'  Courts  of  chancery  in  the  United  States, 
possessing  a  general  jurisdiction  in  equity,  have  sometimes  exercis- 
ed such  jurisdiction  in  matters  pertaining  to  guardianship.  It  has 
been  held  that  such  courts  may  remove,  not  only  guardians  appoint- 
ed by  themselves,  but  also  statutory  and  testamentary  guardians.^' 
Probate,  surrogates',  and  similar  courts,  invested  by  statute  with  ju- 
risdiction in  matters  pertaining  to  guardianships,  generally  have  the 
power  to  remove  testamentary  guardians  ^^  and  guardians  of  their 
own  appointing.^® 

A  breach  of  official  duty  by  a  guardian,  such  as  the  use  of  the 
ward's  property  for  his  own  advantage,^  ^  the  failure  to  apply  the  in- 
come of  the  ward's  property  to  his  support,'"  the  waste  of  the  es- 
tate,'^ or  'failure  to  file  an  inventory  when  ordered,'^  has  been  held 
sufficient  ground  for  removal.  Removal  will  also  be  made  in  case 
the  guardian  is  unfit  for  the  position — as  when  his  interests  are  hos- 
tile to  the  ward's;  '^  when  his  influence,  on  account  of  confirmed  hab- 
its of  intoxication**  or  immoral  life,^°  is  bad;  where,  through  igno- 
rance, he  is  incompetent  to  manage  the  estate,'"  or  has  been  convicted 


28  Foster  v.  Denny,  2  CIi.  Cas.  237;  Ingham  v.  Blckerdlke,  6  Madd.  275. 

2  6  Cowls  V.  Cowls,  3  Oilman  (111.)  435,  44  Am.  Dec,  708;  Ex  parte  Crumb, 
2  Johns.  Ch.  (N.  Y.)  439;  Disbrow  v.  Henshaw,  8  Cow.  (N.  Y.)  349;  2  Kent, 
Comm,  227. 

27  McPhillips  V.  McPhillips,  9  R.  I.  536;  Damarell  v.  Walker,  2  Redf.  Sur. 
(N.  Y.)  198 ;  Copp  v.  Copp,  20  N.  H.  284. 

28  Simpson  v.  Gonzalez,  15  Fla.  9;  Clement's  Appeal,  25  N.  J.  Eq.  508;  Skid- 
more  V.  Davies,  10  Paige  (N,  Y.)  316. 

29  Snavely  v.  Harkrader,  29  Grat.  (Va.)  112;  In  re  O'Neil's  Guardian,  1 
Tuck.  (N.  Y.)  34;  Wood  v.  Black,  84  Ind.  279;  In  re  Cooper,  2  Paige  (N.  Y.) 
34.    But  see  Sweet  v.  Sweet,  Speers,  Eq.  (S.  C.)  309. 

80  In  re  Swift,  47  Cal.  629;  Ruohs  v.  Backer,  6  Heisk.  (Term.)  395,  19  Am. 
Rep.  598. 

81  Dickerson  v.  Dickerson,  31  N.  J.  Eq.  652. 

82  Windsor  v.  McAtee,  2  Mete.  (Ky.)  430 ;  ante,  p.  361, 

8  8  In  re  Mansfield's  Estate,  20G  Pa.  64,  55  Atl.  764;  In  re  Edmonson's  Es- 
tate (Neb.)  110  N.  W.  540.  Conduct  tending  to  alienate  the  child's  affections 
from  its  mother  has  been  held  sufficient  groimd  for  removal.  Perkins  v.  Fin- 
negan,  105  Mass.  501. 

84  Kettletas  v.  Gardner,  1  Paige  (N.  Y.)  488. 

8  6  Ruohs  V.  Backer,  6  Heisk.  (Tenn.)  395,  19  Am.  Rep.  598. 

8«  Nicholson's  Appeal,  20  Pa.  50;  Wood  v.  Black,  84  Ind,  279. 


§    188)  ENFORCEMENT   OF   GUARDIAn's   LIABILITY.  371 

of  a  crime."  Insolvency  will  not  necessarily  disqualify/^  though  it 
has  been  held  sufficient  ground  for  removal.^ ^  Removal  from  the 
state  has  been  held  a  ground  for  revoking  the  appointment,*''  and  is 
sometimes  expressly  made  so  by  statute.*^  When  a  guardian  has  ob- 
tained his  appointment  through  false  representations,  he  may  be  re- 
moved.** A  guardian  cannot  be  removed  by  the  court  without  due 
notice  to  him;  *^  and  the  appointment  of  a  new  guardian  will  not  have 
that  effect,  the  guardianship  continuing  until  a  judicial  decree  of  re- 
moval is  made.** 


ENFORCEMENT    OP   GUARDIAN'S    LIABILITY. 

188.  A  suit  does  not  lie  by  tlie  ward  against  the  guardian  during 
tlie  guardianship,  but  courts  of  chancery  have  a  general  juris- 
diction to  control  guardians  of  their  oxan  appointment  in  the 
management  of  the  estate.  The  liability  of  statute  guardians 
is  usually  enforced  by  means  of  their  bonds. 

Where  a  guardian  misappropriates  his  ward's  funds,  an  action  at 
law  will  not  lie  at  the  suit  of  the  ward,  in  indebitatus  assumpsit.*"* 
Nor  can  a  bill  in  equity  be  brought,  although  a  guardian  has  assets 
of  the  ward  in  his  hands,  to  charge  him  for  nonpayment  of  the  ward's 
debts,  since  there  is  an  adequate  remedy  at  law  on  the  guardian's 
bond.**     The  relation  being  that  of  trustee  and  cestui  que  trust,  and 

3T  In  re  Soley's  Estate,  13  Phila.  (Pa.)  402. 

3  8  In  re  Chew's  Estate,  4  Md.  Cb.  60. 

80  In  re  Cooper,  2  Paige  (N.  Y.)  34.    And  see  Baldridge  v.  State,  G9  Ind.  166. 

4  0  Cooke  V.  Beale,  33  N.  C.  36.  See  Succession  of  Cass,  42  La.  Ann.  381, 
7  South.  617. 

41  State  V.  Engelke,  6  Mo.  App.  356;  Speight  v.  Knight,  11  Ala.  461. 

42  Clement's  Appeal,  25  N.  J.  Eq.  508 ;  Pease  v.  Roberts,  16  111.  App.  634. 

43Gwin  V.  Vanzant,  7  Yerg.  (Tenn.)  143;  Copp  v.  Copp,  20  N.  H.  284;  Mont- 
gomery V.  Smith,  3  Dana  (Ky.)  51)9 ;  Speight  v.  Knight,  11  Ala.  461 ;  State  v. 
Engelke,  6  Mo.  App.  356;  Hart  v.  Gray,  3  Sumn.  339,  Fed.  Cas.  No.  6,152.  Con- 
tra, where  be  leaves  the  state.    Cooke  v.  Beale,  33  N.  C.  36. 

44  Fay  V.  Hurd,  8  Pick.  (Mass.)  528;  Copp  v.  Copp,  20  N.  H.  284;  Bledsoe 
V.  Britt,  6  Yerg.  (Tenn.)  458,  403;  Estridge  v.  Estridge,  76  S.  W.  1101,  25 
Ky.  Law  Rep.  1076;  Robinson  v.  Zollinger,  9  Watts  (Pa.)  169;  Thomas  v.  Bur- 
rus,  23  Miss.  550,  55  Am.  Dec.  154.  See,  also,  Dickerson  v.  Bowen,  128  Ga. 
122,  57  S.  E.  326. 

45  Brooks  V.  Brooks,  11  Cusb.  (Mass.)  18;  Thorndike  v.  Hinckley,  155  Mass. 
203,  29  N.  E.  579;  Linton  v.  Walker,  8  Fla.  144,  71  Am.  Dec  105.  * 

4  8  Conant  v.  Kendall,  21  Pick.  (Mass.)  36. 


372  TEKMINATION   OF  GUARDIANSHIP.  (Ch.  13 

not  that  of  debtor  and  creditor,  the  guardian  is  subject  to  all  the  lia- 
bilities, and  entitled  to  all  the  benefits,  incidental  to  his  position,  one 
of  which  is  the  right  to  an  opportunity  to  render  his  account,  and  to 
have  the  same  adjusted  by  the  court.*^  It  has  also  been  held  that 
a  ward  cannot  recover  damages  during  the  guardianship,  in  a  suit 
against  his  guardian  for  an  assault  and  battery,  though  it  might  be 
ground  for  his  removal  or  for  redress  in  the  criminal  courts.** 

A  court  of  chancery,  as  it  has  a  general  jurisdiction  over  guardians 
appointed  by  it,  can  make  such  orders  during  the  continuance  of  the 
guardianship  as  are  necessary  to  protect  the  ward's  estate,  and,  by  a 
bill  in  equity  brought  by  the  ward  through  his  next  friend,  the  guard- 
ian may  be  compelled  to  account.**  In  matters  of  accounting,  courts 
of  probate  and  other  similar  courts  are  often  held  to  possess  powers 
which  are  co-extensive  with  those  of  a  court  of  chancery,  and  they 
adopt  the  same  forms  and  mode  of  procedure.'**  Courts  having  a  gen- 
eral jurisdiction  over  the  estates  of  wards  have  also  been  held  to  have 
the  power  to  order  the  payment  of  claims."**  When  a  guardian  retains 
his  ward's  property  after  the  termination  of  the  guardianship,  the  ac- 
tion of  account  will  lie  at  law,  at  the  suit  of  the  ward.'^  Statute 
guardians  are  generally  held  to  accountability  by  enforcing  their  lia- 
bility under  their  bonds,  as  explained  in  the  following  section. 

*»  Brooks  V.  Brooks,  11  Gush.  (Masa)  18 ;  Bonner  v.  Evans,  89  Ga.  656,  15 
S.  E.  9U6 ;  Minter  v.  Clark,  92  Tenn.  459,  22  S.  W.  73. 

*8  Mason  v.  Mason,  19  Pick.  (Mass.)  506.  But  see  Brattain  v.  Cannady,  96 
Ind.  266. 

49  Blake  V.  Blake,  2  Schoales  &  L.  26;  Monell  v.  Monell,  5  Johns.  Ch.  (N.  Y.) 
283,  9  Am.  Dec.  298;  Swan  v.  Dent,  2  Md.  Ch.  Ill;  Linton  v.  Walker,  8  Fla. 
144,  71  Am.  Dec.  105;  Lemon  v.  Hansbarger,  6  Grat.  (Va.)  301;  Manning  v. 
Manning,  61  Ga.  137;  Peek  v.  Braman,  2  Blackf.  (Ind.)  141. 

CO  In  re  Steele,  65  111.  322;  Cheney  v.  Roodhouse,  135  111.  257,  25  N.  E.  1019: 
Tudhope  v.  Potts,  91  Mich.  490,  51  N.  W.  1110;  Seaman  v.  Duryea,  11  N.  Y.  324. 

61  Yeakle  v.  Winters,  60  Ind.  554;  Turner  v.  Flagg,  6  Ind.  App.  563,  33  N. 
E.  1104. 

8  2  Field  V.  Torrey,  7  Vt  372;  Harris  v.  Harris,  44  Vt  320;  Green  v.  John- 
son, 3  Gill  &  J.  (Md.)  389. 


g§  189-191)  guardians'  bonds.  373 


GUARDIANS'    BOXDS. 

180.  All  gnnardians,  xpith  the  exception  of  testamentary  gnardiana 
in  some  jurisdictions,  must  give  bonds  before  entering  on 
tbeir  duties;  and  tbey  and  their  sureties  are  liable  there- 
nnder  for  all  losses  occurring  through  the  guardians'  delin- 
quencies. 

190.  The   liability   under   a   guardian's    bond   continues   until   barred 

by  the  statute  of  limitations.  By  the  TP-eight  of  authority,  it 
cannot  be  enforced  until  determined  by  the  settlement  of  the 
final  account. 

191.  The  sureties  on  the  special  sale  bond,  and  not  those  on  the  gen- 

eral bond,  are,  by  the  weight  of  authority,  liable  for  the  pro- 
ceeds  of  a  sale   of  real  estate  under  order  of  the  court. 

Guardians  of  the  person  and  estate  appointed  by  the  court  of  Chan- 
cery in  England,"'  and  statute  guardians  in  this  country,'*  are  re- 
quired to  give  bonds,  with  sureties  satisfactory  to  the  court,  for  the 
faithful  discharge  of  their  duties,  and  to  duly  account.  They  have 
no  authority  to  act  before  the  giving  of  the  bond."°  The  guardian 
and  his  sureties  are  responsible  for  all  property,  of  every  nature  and 
description,  which  comes,  or  which,  if  the  guardian  performs  his  duty, 
should  come,  into  his  hands  as  guardian,^*  as  well  as  for  losses  oc- 
curring through  his  failure  to  perform  his  duty."^^  For  property  of 
his  ward  which  may  come  into  his  hands  otherwise  than  in  his  capac- 
ity as  guardian,  his  sureties  are  not  responsible."*     Nor  are  they  lia- 

68  Eversley,  Dom.  Rel.  657. 

64  By  statute,  testamentary  guardians'  are  often  required  to  give  bond,  and 
render  account.    Murphy  v.  Superior  Court,  84  Cal.  592,  24  Pac.  310. 

6  5  Wuesthoff  V.  Germania  Life  Ins.  Co.,  107  N.  Y.  580,  14  N.  E.  811;  Poe  v. 
Schley,  16  Ga.  364;  Westbrook  v.  Uomstock,  Walk.  Ch.  (Mich.)  314;  People 
V.  Seelye,  146  111.  189,  32  N.  E.  458. 

ceMattoon  v.  Cowing,  13  Gray  (Mass.)  387;  Brooks  v.  Tobln,  135  Mass.  69; 
Pierce  v.  Prescott,  128  Mass.  140;  Bond  v.  Lockwood,  33  111.  212;  McClendon 
V.  Harlan,  2  Heisk.  (Tenn.)  337;  Hunt  v.  State,  53  Ind.  321 ;  Neill  v.  Neill,  31 
Miss.  36 ;  State  v.  Brown,  73  N.  C.  81 ;  Butler  v.  Legro,  62  N.  H.  350,  13  Am. 
St  Rep.  573;  Culp  v.  Stanford,  112  N.  C.  664,  16  S.  E.  761. 

6  T  Richardson  v.  Boynton,  12  Allen  (Mass.)  138,  90  Am.  Dec.  141;  Taylor 
v.  Hemingray,  81  Ky.  158;  Jennings  v.  Copeland,  90  N.  C.  572;  EHchelberger 
V.  Gross,  42  Ohio  St.  549 ;  Yost  v.  State,  SO  Ind.  350. 

6  8  Livermore  v.  Bemis,  2  Allen  (Mass.)  394;  Hinckley  v.  Probate  Judge,  45 
Mich.  343,  7  N.  W.  907 ;  Allen  v.  Crosland,  2  Rich.  Eq.  (S.  C.)  68 ;  Hindman  t. 
State,  61  Md.  471. 


374  TERMINATION  OF  GUARDIANSHIP.  (Ch.  13 

ble  for  property  received,  or  for  acts  performed,  after  his  final  dis- 
charge/* But  the  termination  of  the  guardianship  does  not  relieve 
the  sureties  from  liability  for  property  received  and  acts  performed 
during  its  continuation, ®°  and  their  liability  continues,  unless  limited 
by  special  statute,  until  the  statute  of  limitations  has  run."^  On  the 
death  of  the  surety,  his  estate  is  liable,®^  Even  the  discharge  of  a 
surety  will  relieve  him  only  from  the  acts  of  the  guardian  occurring 
subsequent  to  the  giving  of  a  new  bond."  For  previous  acts  the 
sureties  on  the  old  and  new  bonds  are  in  some  jurisdictions  jointly 
liable,'*  but  in  others  the  second  bond  has  been  held  not  to  be  retro- 
spective."* By  the  weight  of  authority,  an  action  on  a  guardian's  bond 
will  not  lie  until  the  guardian's  liability  is  determined  by  the  settle- 
ment of  his  final  account.®" 

B»  Merrells  v.  Phelps,  34  Conn.  109. 

80  Naugle  v.  State,  101  Ind.  284;  In  re  Walling,  35  N.  J.  Eq.  105;  Jennings 
V.  Copeland,  90  N.  C.  572,  And  see  Baum  v.  Hartmann,  226  111.  160,  80  N. 
E.  711,  117  Am.  St.  Rep.  246. 

«i  Bonham  v.  People,  102  111.  434;  Ragland  v.  Justices  of  Inferior  Court, 
10  Ga.  G5.  To  the  same  effect,  see  Wescott  v.  Upham,  127  Wis.  590,  107  N. 
W.  2 ;  Murphy  v.  Cady,  145  Mich.  33,  108  N.  W.  493.  The  statute  runs  from 
the  time  the  guardian  accounts,  Bell  v.  Rudolph,  70  Miss.  234,  12  South.  153 ; 
or  from  the  time  when  he  denies  or  repudiates  the  trust.  Renter  v.  Lawe,  86 
Wis.  106,  56  N.  W.  472.  In  the  case  of  fraud,  the  statute  runs  from  the  date 
of  its  discovery,  Lataillade  v.  Orena,  91  Cal.  565,  27  Pac.  924,  25  Am,  St.  Rep. 
219 ;  but  not  before  the  ward's  majority,  Minter  v.  Clark,  92  Tenn.  459,  22  S. 
W.  73. 

«2  Anderson  v.  Thomas,  54  Ala.  104;  Hutchcraft  v.  Shrout's  Heirs,  1  T.  B. 
Mon.  (Ky.)  208,  15  Am.  Dec.  100 ;  Brooks  v.  Rayner,  127  Mass.  268;  Cotton  v. 
State.  64  Ind.  573. 

63  Eichelberger  v.  Gross,  42  Ohio  St.  549;  In  re  Conover,  35  N.  J.  Eq.  108; 
Bellune  v.  Wallace,  2  Rich.  Law  (S.  C.)  SO ;  Tost  v.  State,  80  Ind.  350;  Kaspar 
V.  People,  230  111.  342,  82  N.  E,  816. 

«4  Loring  v.  Bacon,  3  Cush.  (Mass.)  465 ;  Miller  v,  Kelsey,  100  Me,  103,  60 
Atl.  717 ;  Hutchcraft  v.  Shrout's  Heirs,  1  T.  B.  Mon.  (Ky.)  208,  15  Am.  Dec. 
100;  Bell's  Adm'r  v.  Jasper,  37  N.  C.  597;  Ammons  v.  People,  11  111.  6;  Steele 
V.  Reese,  6  Yerg.  (Tenn.)  263. 

eoLowry  v.  State,  64  Ind.  421;  State  v.  Jones,  89  Mo.  470,  1  S.  W.  355; 
State  V.  Shackleford,  56  Miss.  648;  Sebastian  v.  Bryan,  21  Ark.  447. 

«<>  Murray  v.  Wood,  144  Mass.  195,  10  N.  E.  822;  Wallace  v.  Swepston,  74 
Ark.  520,  86  S.  W.  398,  1U9  Am.  St.  Rep.  94;  Bailey  v.  Rogers,  1  Greenl.  (Me.) 
186 ;  Stilwell  v.  Mills.  19  Johns.  (N.  Y.)  304 ;  Bisbee  v.  Gleason,  21  Neb.  534, 
32  N.  W.  578;  Allen  v.  Tiffany,  53  Cal.  16;  Verrailya  v.  Bunce,  61  Iowa,  605, 
16  N.  W.  735 ;  Ordinary  v.  Heishon,  42  N.  J.  Law,  15.  Contra,  State  v.  Slevtn, 
03  Mo.  253,  6  S.  W.  68,  3  Am.  St  Rep.  526 ;  Wolfe  v.  State,  59  Misa  338 ;  Call 


§§  189-191)  guardians'  bonds.  375 

When  a  special  bond  is  required,  as  on  the  sale  of  real  estate  by  a 
guardian  under  a  license  by  the  court,  the  conduct  of  such  sale,  and 
the  application  of  the  proceeds  thereof  in  accordance  with  the  license, 
are  generally  held  a  separate  trust,  and  not  one  of  the  general  duties 
of  the  guardianship;  and  therefore,  in  case  of  a  breach,  the  sureties 
on  the  special  bond  are  liable,  and  not  those  on  the  general  bond.®'' 
In  some  states,  however,  the  sureties  on  the  special  and  on  the  general 
bonds  are  jointly  liable,*^  while  in  others  the  sureties  on  the  special 
bond  are  primarily  liable. ®® 


V.  Ruffin,  1  Call  (Va.)  333;  Bonham  ▼.  People,  102  111.  434;  Farrington  v. 
Secor,  91  Iowa,  606,  60  N.  W.  193.  ITiere  need  be  no  accounting  when  the 
liability  is  otherwise  definitely  determined.  Long  v.  Long,  142  N.  Y.  545,  37 
N.  E.  486. 

87  Lyman  v.  Conkey,  1  Mete.  (Mass.)  317;  Swartwout  v.  Oaks,  52  Barb.  (N. 
Y.)  622;  Yost  v.  State,  80  Ind.  350;  Williams  v.  Morton,  38  Me.  47,  61  Am. 
Dec.  229;  Judge  of  Probate  v.  Toothaker,  83  Me.  195,  22  Atl.  119;  Blauser 
V.  Diehl,  90  Pa.  350;  Smith  v.  Gummere,  39  N.  J.  Eq.  27;  Madison  County 
V.  Johnston,  51  Iowa,  152,  50  N.  W.  492.  Contra,  Hart  v.  Stribling,  21  Fla. 
136;  State  v.  Cox,  62  Miss.  786.  Where  a  guardian  sold  for  reinvestment, 
and  neglected  to  reinvest,  he  was  held  liable,  imder  his  special  sale  bond,  for 
the  principal,  and,  on  his  general  bond,  for  interest  thereon.  Mattoon  v.  Cow- 
ing, 13  Gray  (Mass.)  387.  But  see  Smith  v.  Gummere,  supra.  The  liability 
under  a  special  sale  bond  has  been  held  limited  to  a  proper  compliance  with 
the  prerequisites  to  the  sale,  a  faithful  discharge  of  the  duties  in  conducting  it, 
and  to  investing  the  proceeds  as  directed  by  the  order,  and  as  not  extending 
to  the  subsequent  management  of  such  proceeds,  or  their  final  payment  at 
the  expiration  of  the  guardianship.     Fay  v.  Taylor,  11  Mete.  (Mass.)  529. 

« 8  Barker  v.  Boyd,  71  S.  W  528,  24  Ky.  Law  Rep.  1389;  Swisher  v.  Mc^ 
Whinney,  64  Ohio  St  343,  60  N.  E.  565. 

«»Findley  t.  Findley,  42  W.  Va.  372,  26  S.  E.  433. 


Part  IV. 

INFANTS,  PERSONS  NON  COMPOTES 
MENTIS,  AND  ALIENS. 


Tav.P.A  D.Rel.(2d  Ed.)  (377)» 


§  192) 


INFANTS. 


379 


CHAPTER  XIV. 

INFANTS. 

192.  Infancy  Defined, 

193.  Custody  and  Protection. 
194^198.  Privileges  and  Disabilities^ 

194.  In  General. 

195.  Capacity  to  Hold  Office. 

196.  Capacity  to  Make  a  Will. 

197.  Capacity  to  Sue  and  Defend. 

198.  Infants  as  Witnesses. 
199-217.  Contracts  of  Infants. 

199.  In  General. 

200-203.  Liability  for  Necessaries. 

204.  Ratification  and  Disaffirmance. 

205-207.  Time  of  Avoidance. 

208-209.  Who  may  Avoid  Contract. 

210-211.  What  Constitutes  Ratification. 

212.  What  Constitutes  Disafiirmance. 

213.  Extent  of  Ratification  or  Disaffirmance. 
214-215.  Return  of  Consideration. 

21&-217.  It:ffect  of  Ratification  or  Disaffirmance. 

218.  Removal  of  Disabilities. 

219-220.  Actions  in  Tort  by  Infants. 

221-222.  Liability  of  Infants  for  Torts. 

223-224.  Responsibility  of  Infants  for  Crimes. 


INFANCY   DEFINED. 

192.  At  common  law  all  persons  under  21  years  of  age  are  infants. 
But,  by  statute,  in  some  states,  females  attain  their  majority 
at  18,  and  in  some  states,  by  statute,  all  minors  attain  tbeir 
majority  on  marriage. 

The  term  "infancy"  is  used  in  law  to  designate  the  status  of  per- 
sons under  the  age  of  majority,  which  is  fixed  at  common  law  at  21 
for  both  sexes.  Since  the  law  disregards  fractions  of  a  day  in  com- 
puting time,  an  infant  becomes  of  age  at  the  first  moment  of  the  day 
preceding  the  twenty-first  anniversary  of  his  birth. ^     By  statute,  in 


1  1  Bl.  Comm.  463;  2  Kent,  Comm.  233;  Anon.,  1  Ld.  Raym.  480;  Fitz-Hugh 
V.  Dennington,  6  Mod.  259;  Hamlin  v.  Stevenson,  4  Dana  (Ky.)  597;  State 
v.  Clarke,  3  Har.  (Del.)  557;  Ex  parte  Wood,  5  Cal.  App.  471,  90  Pac.  901; 
Wells  V.  Wells,  6  Ind.  447 ;  Bardwell  v.  Pnrrington,  107  Mass.  419. 


380  INFANTS.  (Ch.  14 

some  states  females  become  of  age  at  18;    in  others,  on  marriage; 
and  in  a  few  states  both  sexes  attain  their  majority  on  marriage.' 

CUSTODY   AND    PROTECTION. 

193.  The  state  has  power  to  control  and  regulate  the  cnstody  of 
children  and  to  establish  and  enforce  regulations  for  their 
protection. 

The  right  of  parents  and  the  duly  appointed  guardian  to  the  cus- 
tody of  the  child  has  been  discussed  elsewhere.^  While  the  general 
right  of  parents  and  guardians  is  recognized,  it  is  well  settled  that 
they  possess  no  absolute  right  to  the  custody  of  the  child,  but  that  the 
state,  as  parens  patriae,  as  the  welfare  of  the  child  may  demand,  may 
control  and  determine  its  proper  custody,*  and  legislate  for  its  pro- 
tection."^ Thus,  it  is  within  the  power  of  the  Legislature  to  enact 
statutes  to  prevent  the  presence  of  infants  in  billiard  and  pool  rooms, 
saloons,  and  the  like,'  or  the  exhibition  to  an  infant  of  stories  of  crime 
or  bloodshed,  or  obscene  books  or  pictures ;  ^  to  prescribe  regulations 
as  to  the  employment  of  children ;  *  and  to  prevent  and  punish  cruelty 

2  Stlm.  Am.  St.  Law,  §  6601.  •  Ante,  p.  267,  328. 

*  2  Kent,  Comm.  205 ;  Lally  v.  Sullivan,  85  Iowa,  49,  51  N.  W.  1155,  16  K 
R.  A.  681;  In  re  Knowack,  158  N.  Y.  482,  53  N.  E.  676,  44  L.  R.  A.  699;  In 
re  Hope,  19  R.  I.  486,  34  Atl.  994;  In  re  Stittgen,  110  Wis.  625,  86  N.  W.  563; 
Hunt  V.  Wayne  Circuit  Judges  (Mich.)  105  N.  W.  531,  3  L.  R.  A.  (N.  S.)  564 ; 
Hesselman  v.  Haas  (N.  J.  Cli.)  64  Atl.  165;  Kelsey  v.  Green,  69  Conn.  291, 
37  Atl.  679,  38  L.  R.  A.  471.  Right  to  commit  custody  to  societies  organized 
to  care  for  neglected  children.  McFall  v,  Simmons,  12  S.  D.  562,  81  N.  W. 
898;  In  re  Kol,  10  N.  D.  493,  88  N.  W.  273.  Commitment  of  juvenile  delin- 
quents to  industrial  and  reform  schools.  Van  Walters  v.  Board  of  Children's 
Guardians  of  Marion  County,  132  lud.  567,  32  N.  E.  568,  18  L.  R.  A.  431;  In 
re  Gassaway,  70  Kan.  695,  79  Pac.  113;  Mill  v.  Brown,  31  Utah,  473,  88  Pac. 
609,  120  Am.  St.  Rep.  935. 

5  People  V.  Pierson,  176  N.  Y.  201,  68  N.  E.  243,  63  L.  R.  A.  187,  98  Am. 
St.  Rep.  6G6 ;  People  v.  Ewer,  141  N.  Y.  129,  36  N.  B.  4,  25  L.  R.  A.  794.  38 
Am.  St  Rep.  788. 

c  Powell  V.  State,  62  Ind.  531 ;  State  v.  Johnson,  108  Iowa,  245,  79  N.  W. 
62;  Ex  parte  Meyers  (Cal.  App.)  94  Pac.  870;  Commonwealth  v.  Wills,  82  S. 
W.'236,  26  Ky.  Law  Rep.  515;  Rhodes  v.  State,  118  Tenn.  761,  102  S.  W.  899. 

7  Strohm  v.  People,  160  111.  582,  43  N.  E.  622,  affirming  60  111.  App.  128. 

8  City  of  New  York  v.  Chelsea  Jute  Mills,  43  Misc.  Rep.  266,  88  N.  Y.  Supp. 
1085;  Overland  Cotton  Mill  Co.  v.  People,  32  Colo.  263,  75  Pac.  924,  105  Am. 
St  Rep.  74 ;  State  v.  Shorey,  48  Or.  396,  86  Pac.  881 ;  State  v.  Deck,  108  Mo. 
App.  292,  83  S.  W.  314. 


§§    194r-198)  PRIVILEGES   AND    DISABILITIES.  381 

to  children/  or  neglect  endangering  the  life  or  injuring  the  health  of 
children.^" 

PRIVILEGES   AND   DISABFLITIES. 

194.  Infants   are   favorites   of   the   law,   xirlilcli,   for  tlieir   protection, 

has  conferred  upon  them  certain  privileges  and  has  imposed 
upon   them   certain   disabilities, 

195.  CAPACITT  TO   HOLD   OFFICE.      An  infant  can  hold  an  office 

ivhich  is  purely  ministerial,  but  not  one  requiring  the  exercise 
of  discretion,  or  involving  financial  responsibility. 

196.  CAPACITY  TO  MAKE  WILL.     At  common  law  the  will  of  a  male 

at  14,  and  of  a  female  at  12,  years  of  age,  w^as  valid  as  to  per- 
sonalty, but  an  infant  could  not  make  a  valid  -will  of  real  es- 
tate. 

197.  CAPACITY  TO  SUE   AND  DEFEND.      An  Infant  cannot   sue  in 

person  or  by  an  attorney,  but  only  by  guardian  or  next  friend; 
and,  ivhen  sued,  he  cannot  appear  in  person,  by  attorney  or  next 
friend,  but  only  by  a  general  guardian  or  by  guardian  ad  litem. 
In  niost  states  the  appointment  of  the  next  friend  or  guardian 
ad  litem  is  regulated  by  statute.  Where  an  infant  is  sued,  and 
has  appeared  by  guardian  ad  litem,  he  is  bound  by  a  judgment 
at  law^  and  decree  in  equity  as  fuUy  as  an  adult. 

198.  INFANTS  AS  "WITNESSES.      An  infant  is  competent  to  testify 

as  a  xritness  if  he  understands  the  nature  of  an  oath,  but  not 
other^vise. 

To  protect  infants  from  the  injuries  which  because  of  their  inex- 
perience and  immature  mental  capacity,  might  arise  from  their  own 
acts,  or  the  acts  of  designing  adults,  the  law  has  thrown  its  protec- 
tion around  them  in  the  form  of  various  privileges  and  disabilities. 
The  principal  of  these  is,  of  course,  the  privilege  of  avoiding  their 
contracts  and  the  disability  to  bind  themselves  by  their  agreements  un- 
der certain  circumstances — a  branch  of  the  subject  to  be  treated  at 
length  hereafter.^  ^  There  are,  however,  certain  privileges  and  disa- 
bilities of  a  general  nature,  almost  universally  regarded  as  necessari- 
ly incident  to  the  status  of  infancy. ^^  Thus,  in  the  absence  of  any 
positive  provision  of  law  to  the  contrary,  an  infant  will  not  be  prej- 

»  Gary  v.  State,  118  Ga.  17,  44  S.  E.  817. 

10  Lyman  v.  People,  65  111.  App.  687;  Gowley  v.  People,  83  N.  T.  464,  38 
Am.  Rep.  464;  People  v.  Pierson,  176  N.  Y.  201,  68  N.  E.  243,  63  L.  It.  A.  187, 
98  Am.  St.  Rep.  666 ;  People  v.  Trauk,  88  App.  Div.  294,  85  N.  Y.  Supp.  55. 

11  Post,  p.  386.  »»  Capacity  to  marry,  see  ante,  p.  20. 


382  INFANTS.  (Ch.  14 

udiced  by  lapse  of  time,^«  or  laches.**  So,  too,  it  has  been  generally 
held  that  the  doctrine  of  estoppel  has  no  application  to  infants,*  °  un- 
less the  conduct  of  the  infant  was  intentionally  fraudulent.**  And, 
inasmuch  as  the  infant  is  not  bound  by  an  estoppel,  it  has  also  been 
held  that  he  cannot  urge  it  against  an  adult. *^  An  infant  cannot  le- 
gally appoint  an  agent  or  attorney  in  fact.*^  An  infant  may,  how- 
ever, act  as  agent.*® 

Capacity  to  Hold  Office. 

An  infant  may  hold  an  office  which  is  purely  ministerial,  but  when 
an  office  requires  the  exercise  of  discretion,  or  the  safe  discharge  of 
its  duties  involves  the  assumption  of  liabilities  which  would  not  be 
binding  on  an  infant,  he  cannot,  as  a  rule,  be  appointed. ^^  He  cannot 
hold  a  public  office  requiring  the  receipt  and  disbursement  of  mon- 
eys,''* nor  can  he  act  as  administrator.^^    A  court  will  not  appoint  an 


13  Grimsby  v.  Hudnell,  76  Ga.  378,  2  Am.  St.  Rep.  46;  Galhoon  v.  Baird,  3 
A,  K.  Marsh.  (Ky.)  168 ;  Rector  v.  Rector,  3  Gilman  (111.)  105 ;  Parker  v.  Ricks, 
114  La.  942,  38  South.  687;  Cameron  v.  Hicks,  141  N.  C.  21,  53  S.  E.  728,  7 
L.  R.  A.  (N.  S.)  407;  Meurin  v.  Kopplin  (Tex.  Civ.  App.)  100  S.  W.  984. 

14  Smith  V.  Sackett,  5  Gilman  (111.)  534. 

15  Lackman  v.  Wood,  25  Cal.  147;  Sims  v.  E^erhardt,  102  U.  S.  300,  26 
L.  Ed.  87 ;  Harmon  v.  Smith  (C.  C.)  38  Fed.  482 ;  Gillespie  v.  Nabors,  59  Ala. 
441,  31  Am.  Rep.  20;  Underwood  v.  Deckard,  34  Ind.  App.  198,  70  N.  E.  383; 
Headley  v.  Hoopengarner,  60  W.  Va.  626,  55  S.  E.  744;  Kirkham  v.  Wheeler- 
Osgood  Co.,  39  Wash.  415,  81  Pac.  809. 

10  Headley  v.  Hoopengarner,  60  W.  Va.  626,  55  S.  E.  744;  Harper  v.  Utsey 
(Tex.  Civ.  App.)  97  S.  W.  508 ;  Ostrander  v.  Quin,  84  Miss.  230,  36  South.  257, 
105  Am.  St.  Rep.  426. 

17  Montgomery  v.  Gordon,  51  Ala.  377. 

isTrueblood  v.  Trueblood,  8  Ind.  195,  65  Am.  Dec.  756;  Glass  v.  Glass,  76 
Ala.  368.  But  it  is  held  in  some  jurisdictions  that  the  appointment  of  an 
agent  is  voidable  only  and  not  void.  Towle  v.  Dresser,  73  Me.  252.  And  see 
Simpson  v.  Prudential  Ins.  Co.  of  America,  184  Mass.  348,  68  N,  E.  673,  63 
L.  R.  A.  741,  100  Am.  St  Rep.  560. 

19  Talbot  V.  Bowen,  1  A.  K.  Marsh.  (Ky.)  436,  10  Am.  Dec.  747.  Compare 
United  States  Inv.  Corp.  v.  Ulrickson,  84  Minn.  14,  80  N.  W.  613,  87  Am.  St. 
Rep.  326. 

2  0  Crosbie  v.  Hurley,  Ale.  &  N.  431 ;  Moore  v.  Graves,  3  N.  H.  408  (collecting 
cases).  One  otherwise  qualified  may  act  as  appraiser  of  land  to  be  sold  on 
execution,  though  he  be  under  21  years  of  age.  White  v.  Laurel  Land  Co.,  82 
S.  W.  571,  26  Ky.  Law  Rep,  775.  Rehearing  denied  83  S.  W.  628,  26  Ky.  Law 
Rep.  1235. 

21  ClarJdge  v.  Evelyn,  5  Bam.  &  Aid.  81. 

22  1  Williams,  Ex'rs,  479;  Ex  parte  Sergison,  4  Ves.  147;  In  re  Goods  of 


§§    194-198)  PRIVILEGES   AND   DISABILITIES.  383 

infant  a  trustee,  since  he  would  not  be  liable  for  a  breach  of  trust, 
and  could  not  give  a  bond  for  the  security  of  the  funds,  and  would  be 
wanting  in  discretion  and  judgment  to  properly  execute  the  trust.* ^ 
If  an  infant  is  appointed,  the  court  will  substitute  some  one  in  his 
place,^*  but  without  prejudice  to  his  restoration  on  majority.*"^ 

Capacity  to  Make  Will. 

At  common  law,  males  at  14  years  of  age,  and  females  at  12,  could 
dispose  of  personal  property  by  will,^'  but  neither  could  make  a  valid 
devise  of  real  estate  until  attaining  majority.*^  By  statute,**  in  Eng- 
land, no  will  made  by  any  person  under  21  is  valid;  and  the  age  at 
which  a  will  can  be  made  in  this  country  is  now  generally  fixed  by 
statutes,  some  of  which  are  similar  to  the  English  statute.  Some  of 
the  statutes  make  a  distinction  between  males  and  females,  and  some 
make  a  distinction  between  real  and  personal  property. 

Capacity  to  Sue  and  Defend. 

While  the  rights  of  infants  may  be  enforced  in  courts  of  law,  they 
cannot  sue  in  person,  nor  are  they  competent  to  appoint  attorneys  to 
appear  in  court  for  them.**  At  common  law  they  could  only  sue  by 
guardian.  By  the  statute  of  Westm.  II,  c.  15,  infants  were  authorized 
to  sue  by  prochien  ami,  or  next  friend,  and,  by  well-settled  practice, 
may  generally  sue  either  by  guardian  or  by  next  friend,*"  though  in 


Duchess  of  Orleans,  1  Swab.  &  T.  253;  Rea  v.  Englesing,  56  Miss.  463;  Bris- 
coe V.  Tarkington,  5  La.  Ann.  692, 

23  Lewin,  Trusts,  37,  38. 

2  4  In  re  Porter,  25  Law  J,  Ch.  482. 

2  5  In  re  Shelmerdine,  33  Law  J,  Ch.  474. 

26  1  Williams,  Ex'rs,  15;  Davis  v.  Baugh,  1  Sneed  (Tenn.)  477.  The  question 
is  not  free  from  doubt,    Co.  Litt.  89b. 

2T  Jarm,  Wills,  32;  4  Kent,  Comm.  505, 

2  8  St.  1  Vict.  c.  26,  §  7. 

2»  1  Co.  Litt.  135b;  Bartholomew  v.  Dighton,  Cro.  Ellz,  424;  Gilbert  v, 
Mazerat,  121  La,  35,  46  South,  47;  Miles  v.  Boyden,  3  Pick.  (Mass.)  213; 
Wainwright  v.  Wilkinson,  62  Md.  146;  Clark  v.  Turner,  1  Root  (Conn.)  200; 
Bennett  v.  Davis,  6  Cow.  (N.  Y.)  393;  Mockey  v.  Grey,  2  Johns.  (N.  Y.)  192, 

30  1  Bl.  Comm.  464 ;  Defofd  v.  State,  30  Md.  179 ;  Barwick  v.  Rackley,  45 
Ala.  215;  Brown  v.  Hull,  16  Vt.  673;  Judson  v.  Blanchard,  3  Conn.  579;  Hurt 
V.  Railroad  Co.,  40  Miss.  391;  Simpson  v,  Alexander,  6  Cold.  (Tenn.)  619.  If, 
pending  the  action,  the  minor  arrives  at  his  majority,  he  may  at  his  election 
assume  control  of  the  prosecution  or  defense  in  his  individual  capacity.  Ber- 
nard v.  Pittsburg  Coal  Co.,  137  Mich.  279,  100  N.  W.  396;  Mahouey  t.  Park 
Steel  Co.,  217  Pa.  20,  66  Atl.  90. 


3S4  INFANTS.  (Ch.  14 

many  jurisdictions  the  whole  matter  is  regulated  by  statute.  The 
next  friend  or  guardian  is  an  officer  of  the  court,  rather  than  a  party 
to  the  action,^ ^  and,  in  theory,  is  appointed  by  the  court;  but  in  prac- 
tice, except  when  required  by  statute,  the  obtaining  of  an  order  of 
appointment  has  fallen  into  disuse,  as  it  may  subsequently  be  obtain- 
ed if  the  authority  to  appear  is  questioned. ^^  His  authority  begins 
with  the  commencement  of  the  action,  and  he  cannot  sue  when  a  de- 
mand is  necessary  before  suit.^'  In  the  appointment  of  the  next 
friend,  the  courts  will  generally  respect  the  claim  of  a  father,  as  the 
natural  guardian  of  his  child,  to  represent  the  infant,"  unless  his  in- 
terest is  adverse,"*  but  relationship  is  not  a  requisite  in  a  next 
friend.^® 

When  an  infant  is  sued  he  cannot  appear  in  person  or  by  attorney,'^ 
or  by  next  friend,'^  but  only  by  guardian.^'  If  the  infant  already  has 
a  general  guardian,  it  is  his  duty  to  appear  for  the  infant,*"  unless 

81  Davies  v.  Lockett,  4  Taunt.  765;  Klaus  v.  State,  54  Miss.  644;  Bartlett 
V.  Batts,  14  Ga.  539;  Baltimore  &  O.  R.  Co.  v.  Fitzpatrick,  36  Md.  619.  And 
therefore  he  may  be  removed  by  the  court  at  any  time  for  cause.  Barwick 
V.  Rackley,  45  Ala.  215;  Deford  v.  State,  30  Md.  179;  Simpson  v.  Alexander, 
6  Cold.  (Tenn.)  619. 

32  Guild  V.  Cranston,  8  Cush.  (Mass.)  506;  Judson  v.  Blanchard,  3  Conn.  579; 
Williams  v.  Cleaveland,  76  Conn.  426,  56  Atl.  850 ;  Barwick  v.  Rackley,  45  Ala. 
215;  Deford  v.  State,  30  Md.  179;  Klaus  v.  State,  54  Miss.  644 ;  Rima  v.  Iron 
Works,  120  N.  Y.  433,  24  N.  E.  940;  Bartlett  v.  Batts,  14  Ga.  539.  By  stat- 
ute, a  formal  order  of  appointment  is  often  required.  But  the  absence  of  a 
formal  order  is  not  fatal  to  the  appointment,  if  the  fact  appears  by  recitals 
or  reference  in  the  record.    Crane  v.  Stafford,  217  111.  21,  75  N.  E.  424. 

33  Miles  V.  Boyden,  3  Pick.  (Mass.)  213. 

84Woolf  V.  Pemberton,  6  Ch.  Div.  19;  Rue  v.  Meirs,  43  N.  J.  Eq.  377,  12 
Atl.  369;  Donald  v.  City  of  Ballard,  34  Wash.  576,  76  Pac  80.  But  see 
Gilbert  v.  Mazerat,  121  La.  35,  46  South.  47. 

35  Patterson  v.  Pullman,  104  111.  80. 

86  Guild  V.  Cranston,  8  Cush.  (Mass.)  506;  Burns  v.  Wilson,  1  Mo.  App. 
179;  Bartlett  v.  Batts,  14  Ga.  539. 

sTCo.  Litt.  SSb,  note;  Frescobaidi  v.  Kinaston,  2  Strange,  783;  Bullard  v. 
Spoor,  2  Cow.  (N.  Y.)  430;  Knapp  v.  Crosby,  1  Mass.  479;  Bedell's  Heirs  v. 
Lewis'  Heirs,  4  J.  J.  Marsh.  (Ky.)  562;  Starbird  v.  Moore,  21  Vt  529;  Mar- 
shall V.  Wing,  50  Me.  62;  Wright  v.  McNatt,  49  Tex.  425. 

8  8  Fitzh.  Nat  Brev.  27  H;  Bush  v,  Linthicum,  59  Md.  344;  Brown  v.  Hull, 
16  Vt  673. 

8  9  Mitchell  V.  Spaulding,  206  Pa.  220,  55  Atl.  968. 

*o  Mansur  v.  Pratt,  101  Mass.  60;  Cowan  v.  Anderson,  7  Cold.  (Tenn.)  284; 
Colt  V.  Colt,  19  Blatchf.  399,  48  Fed.  385;  Hughes  v.  Sellers,  34  Ind.  337; 
Smith  V.  McDonald,  42  Cal.  484 ;  Nunn  v.  Robertson,  80  Ark.  350,  97  S.  W.  293. 


§§    194-198)  PRIVILEGES   AND   DISABILITIES.  385 

his  interest  is  adverse;  *^  but,  if  no  general  guardian  has  been  appoint- 
ed, a  special  guardian,  known  as  a  "guardian  ad  litem,"  must  be  ap- 
pointed by  the  court,  to  represent  the  infant  in  the  action. ^^  The  ap- 
pointment and  duties  of  a  guardian  ad  litem' are  regulated  by  statute 
in  most  of  the  states.  The  failure  to  appoint  a  guardian  ad  litem  is, 
apart  from  statutory  regulations,  an  error  which  may  be  cured  within 
a  limited  time  after  appearance ;  *^  but,  when  no  guardian  ad  litem 
has  been  appointed,  a  judgment  rendered  under  such  circumstances  is 
voidable,**  though  valid  until  set  aside. *^  Likewise,  a  decree  in  equi- 
ty rendered  against  an  infant,  after  due  service  of  process  and  ap- 
pearance by  guardian  ad  litem,  is  binding  on  him  until  reversed,  aiid 
is  only  reversible  for  fraud,  collusion,  or  error.*' 

Infants  as  Witnesses. 

At  common  law  there  is  no  age  under  which  an  infant  is  incom- 
petent to  testify  as  a  witness.  The  only  rule  is  that  he  must  be  of 
sufficient  intelligence  to  understand  the  nature  of  an  oath,  and  the 
solemn  responsibility  which  rests  upon  him  to  tell  the  truth.  Above 
the  age  of  14  years  an  infant  is  presumed  to  be  competent,  though, 
of  course,  the  presumption  may  be  rebutted  by  showing  that  he  does 
not  understand  the  nature  of  an  oath.  If  he  is  under  14  years  of  age 
he  is  presumed  to  be  incompetent,  and  his  competency  must  be  es- 
tablished to  the  satisfaction  of  the  court  before  he  can  be  allowed  to 


*i  Owens  V.  Gunther,  75  Ark.  37,  86  S.  W.  851. 

4  2  Bac.  Abr.  "Guardian,"  B  4;  Roberts'  Widow  v.  Stanton,  2  Munf.  (Va.) 
129,  5  Am.  Dec.  463;  Stinson  v.  Pickering,  70  Me.  273;  Wells  v.  Smith,  44  Miss. 
296. 

4  3  Nicholson  v.  Wilbom,  13  Ga.  467. 

4*0'Hara  v.  McCounell,  93  U.  S.  150,  23  L.  Ed.  840;  Austin  v.  Trustees, 
8  Mete.  (Mass.)  196,  41  Am.  Dec.  497;  Walkenhorst  v.  Lewis,  24  Kan.  420; 
Moore  v.  McEwen,  5  Serg.  &  R.  (Pa.)  373 ;  Barber  v.  Graves.  18  Vt.  290 ;  Weiss 
V.  Coudrey,  102  Mo.  App.  65,  76  S.  W.  730;  Weaver  v.  Glenn,  104  Va.  443,  51 
S.  E.  S^.-j.  See,  also,  McMurtry  v.  1^'airley,  194  Mo.  502,  91  S.  W.  902,  holding 
that,  where  an  infant  defendant  in  partition  was  not  properly  served  with 
process,  the  court  was  without  authority  to  appoint  a  guardian  ad  litem 
for  him,  and  the  judgment  as  to  him  was  void, 

*5  Colt  V.  Colt,  111  U.  S.  566,  4  Sup.  Ct.  553,  28  L.  Ed.  520;  Austin  v.  Trus- 
tees, 8  Mete.  (Mass.)  196,  41  Am.  Dec.  497 ;  England  v.  Garner,  90  N.  C.  197 ; 
Bcrnecker  v.  Miller,  44  Mo.  102;  Walkenhorst  v.  Lewis,  24  Kan.  420. 

46  1  Daniell,  Ch.  Prac.  205;  Gregory  v.  Molesworth,  3  Atk.  026;  Ralston  v. 
Lahoe,  8  Iowa,  17,  74  Am.  Dec.  291;  Rivers  v.  Durr,  46  Ala.  418. 

TIFF.P.&  D.Rel.(2d  Ed.)— 25 


386  INFANTS.  (Ch.  14 

testify.*^  A  child  of  6  years  has  been  allowed  to  testify.  Though 
there  is  some  authority  to  the  contrary,*^  by  the  weight  of  opinion, 
when  a  child,  on  being  examined  as  to  his  competency,  does  not  ap- 
pear to  understand  the  nature  of  an  oath,  and  is  of  sufficient  intel- 
ligence to  understand  if  properly  instructed,  the  trial  or  proceeding 
may,  in  the  discretion  of  the  judge,  be  postponed  to  allow  such  in- 
struction.*® As  a  rule,  the  question  of  an  infant's  competency  as  a 
witness  is  addressed  to  the  sound  discretion  of  the  trial  court,  and  its 
ruling  will  not  be  interfered  with,  or  cause  a  reversal  of  the  judg- 
ment based  on  the  infant's  testimony,  except  in  a  clear  case."^"  But 
the,  ruling  is  reviewable,  and  will  be  ground  for  a  reversal  if  it  ap- 
pears that  the  child  was  manifestly  ignorant  of  all  religious  sanction."^ 


CONTRACTS    OF   INFANTS. 

199.   The  contracts   of  an  infant  are   either  void,  voidable,   or  valid. 
Thus— 

(a)  It    xtras    formerly    held    that    all    contracts    of   an.    infant    which 

are  manifestly  to  his  prejudice  are  absolutely  void;  and  in 
some  states,  still,  povirers  of  attorney,  appointments  of  an 
agent,  contracts  of  suretyship,  and  bonds  ivith  a  penalty  are 
held  void.      The   tendency  now   is  to  hold  no  contract  void. 

(b)  Where  a  contract  is  not  void,  nor  valid,  as  hereafter  explained, 

it  is  simply  voidable  at  the  infant's  option.  Most  contracts 
are  xrithin  this  class. 

(c)  The  following  contracts  are  valid,  and  bind  the  infant  as  w^ell 

as   the    adult: 

(1)  Contracts   created  by  law   or  quasi  contracts. 

(2)  Contracts    for    necessaries.       By    the    better    opinion,    these 

are    contracts   created   by  law^. 

(3)  Contracts   entered    into   under    direction   or   authority    of    a 

statute. 

(4)  Contracts  made  in  order  to  do  'what  he  was  legally  bound 

to  do,  and  conld  have  been  compelled  to  do. 

4T1  Greonl.  Ev.  §  367;  Rose.  Cr.  Ev.  94;  Reg.  v.  Hill,  5  Cox,  Cr.  Cas.  259; 
State  V.  Richie,  28  La.  Ann.  327,  26  Am.  Rep.  100 ;  Kendall  v.  May,  10  Allen 
(Mass.)  64 ;  Carter  v.  State,  63  Ala.  52,  35  Am.  Rep.  4 ;  McGuire  v.  People,  44 
Mich.  286,  6  N.  W.  669,  38  Am.  Rep.  265. 

4  8  Rex  V.  Williams,  7  Car.  &  P.  320;  Reg.  v.  Nicholas,  2  Car.  &  K.  246. 

4  8  Com.  V.  Lynes,  142  Mass.  577,  8  N.  E.  408,  56  Am.  Rep.  709. 

6  0  McGuire  v.  People,  44  Mich.  286,  6  N.  W.  669,  38  Am.  Rep.  265. 

61  Rader  v.  Adamson,  37  W.  Va.  585,  16  S,  E.  808;  Beason  v.  State,  72 
Ala.  191. 


§    199)  CONTRACTS   OF   INFANTS.  387 

(5)  Contracts  entered  into  by  him  in  a  representative  capacity. 

(6)  In    some   jurisdictions   an   executed    contract   is  binding   up- 

on an  infant  \(rhere  be  has  received  a  substantial  benefit 
under  it,  and  cannot  place  the  other  party  in  statu  quo. 
As  to  this,  ho\irever,  there  is  much  doubt,  and  the  'weight 
of   authority   is  the   other   way. 

Of  the  various  privileges  conferred  and  disabilities  imposed  on  in- 
fants, the  most  important  is  the  privilege  of  avoiding  their  contracts 
or  the  disability  to  bind  themselves  by  their  contracts,  under  certain 
circumstances.  The  contracts  of  infants  are  either  void,  voidable,  or 
valid — "void"  being  used  in  the  sense  of  void  for  all  purposes,  and 
incapable  of  ratification;  "voidable,"  in  the  sense  of  voidable  at  the 
option  of  the  infant;  and  "valid,"  in  the  sense  of  binding  on  the  in- 
fant. 

Void  and  Voidable  Contracts. 

There  is  much  confusion  among  the  decisions  in  regard  to  infants' 
contracts,  arising  from  the  failure  to  use  the  words  "void"  and  "void- 
able" in  a  uniform  sense ;  "void"  being  used  in  many  cases  to  mean 
simply  not  enforceable,  and  in  others  to  mean  not  capable  of  ratifica- 
tion. But,  aside  from  this,  there  is  great  inconsistency  among  the 
cases  as  to  what  contracts  are  void,  and  what  are  voidable ;  a  gradual 
change  having  taken  place  in  most  jurisdictions  in  favor  of  holding  in- 
fants' contracts  voidable  rather  than  void.  Many  contracts  which 
would  formerly  have  been  held  void  are  now  held  merely  voidable. 
The  object  of  the  law  being  to  protect  the  infant  from  dangers  peculiar 
to  infancy,  it  is  considered  that  this  object  is  fully  attained  by  leaving 
it  for  him  to  decide  whether  or  not  he  will  be  bound  on  reaching:  his 
majority.  ^^ 

Keane  v.  Boycott  "  is  a  leading  case  representing  the  old  rule.  In 
that  case  the  doctrine  was  stated  to  be  (1)  that  where  the  court  could 
pronounce  the  contract  for  the  benefit  of  the  infant,  as  for  necessaries, 
it  was  good ;  (2)  that,  where  the  court  could  pronounce  it  to  his  prej- 
udice, it  was  void;  (3)  that,  in  those  cases  where  the  benefit  or  prej- 
udice was  uncertain,  the  contract  was  voidable  only.  And  the  same 
doctrine  has  been  laid  down  in  this  country.^*    According  to  this  clas- 

B2  Whitney  v.  Dutch,  14  Mass.  457,  7  Am.  Dec.  229. 
03  2  H.  Bl.  511. 

5*  2  Kent,  Comm.  234;  Tucker's  Lessee  v.  Moreland,  10  Pet.  65,  9  L.  Ed.  345; 
Robinson  v.  Weeks,  56  Me.  102;  Duuton  v.  Brown,  31  Mich.  182;  Greeu  v. 


388  INFANTS.  (Ch.  14 

sification,  and  on  the  theory  of  manifest  prejudice  to  the  infant,  some 
courts  hold  that  a  power  or  appointment  of  attorney  by  an  infant  is 
absolutely  void,  and  a  nullity."^'  Some  courts  extend  the  rule  to  all 
appointments  of  agents."*'  And  the  same  has  been  held  as  to  contracts 
of  suretyship  and  obligatiops  with  a  penalty  by  infants.'*'^ 

In  many  cases,  on  the  other  hand,  the  courts  have  rejected  this  doc- 
trine, and  the  tendency  to-day  is  to  leave  it  for  the  infant  to  pass  on 
the  question  of  benefit  or  prejudice  on  reaching  his  majority.  Under 
these  decisions,  all,  or  nearly  all,  contracts  of  infants,  are  merely  void- 
able,"^ without  regard  to  their  appearing  to  be  prejudicial  to  the  in- 
fant or  otherwise,  excepting  certain  contracts  which  are  binding  on 
him.^'  Thus,  in  Williams  v.  Moor,***  Baron  Parke  said :  "The  prom- 
ise is  not  void  in  any  case  unless  the  infant  chooses  to  plead  his  in- 
fancy."    And  in  a  recent  case  *^   it  was  said:    "The  true  doctrine 


Wilding,  59  Iowa,  679,  13  N.  W.  761,  44  Am.  Rep.  696.  In  Vent  v.  Osgood, 
19  Pick.  (Mass.)  572,  it  was  said:  "Wliether  a  contract  by  an  infant  be  void 
or  voidable  or  binding  is  frequently  a  question  of  very  difficult  solution.  If 
it  be  clearly  prejudicial  to  him,  it  is  void.  If  it  may  be  for  tiis  benefit,  or 
to  his  damage,  it  is  voidable  at  his  election,  and  he  may  avoid  it  during  his 
minority,  or  when  he  becomes  ol  full  age.  If  the  contract  be  clearly  beneficial 
to  him,  he  is  bound." 

0  5  Saunderson  v.  Marr,  1  H.  Bl.  75;  Lawrence's  Lessee  v.  McArter,  10 
Ohio,  37 ;  Wainwright  v.  Wilkinson,  62  Md.  146 ;  Knox  v.  Flack,  22  Pa.  337 ; 
Waples  V.  Hastings,  3  Har.  (Del.)  403;  Pyle  v.  Cravens,  4  Litt.  (Ky.)  17; 
Bennett  v.  Davis,  6  Cow.  393.  The  same  court  refused  to  follow  the  rule  in 
the  case  of  a  power  coupled  with  an  interest  Duvall  v.  Graves,  7  Bush 
(Ky.)  461. 

eoTrueblood  v.  Trueblood,  8  Ind.  195,  65  Am.  Dec.  756;  Armitage  v.  Widoe, 
36  Mich.  124;  Flexner  v.  Dickerson,  72  Ala.  318. 

6  7  Suretyship,  Maples  v.  Wightman,  4  Conn.  376,  10  Am.  Dec.  149.  Obliga- 
tions with  a  penalty,  Fisher  v.  Mowbray,  8  East,  330;  Baylis  v.  Dineley,  3 
Maule  &  S.  477. 

6  8  Morton  v.  Steward,  5  111.  App.  533;  Reed  v.  Lane,  61  Vt.  481,  17  Atl.  796; 
In  re  Huntenberg  (D.  C.)  153  Fed.  768;  Luce  v.  Jestrab,  12  N.  D.  548,  97 
N.  W.  848 ;  Helland  v.  Colton  State  Bank,  20  S.  D.  325,  106  N.  W.  60 ;  Cour- 
solle  V.  Weyerhauser,  69  Minn.  328,  72  N.  W.  697 ;  Jones  v.  Valentines'  School 
of  Telegraphy,  122  Wis.  318,  99  N.  W.  1043. 

6  0  Post,  p.  391. 

60  11  Mees.  &  W.  256. 

ei  Lemmon  v.  Beeman,  45  Ohio  St  505,  15  N.  E.  476.  And  see  Hamer  v. 
Dipple,  31  Ohio  St  72,  27  Am.  Rep.  496;  Fetrow  v.  Wiseman,  40  Ind.  148; 
Henry  v.  Root,  33  N.  Y.  526;  Holmes  v.  Rice,  45  Mich.  142,  7  N.  W.  772; 


§  199)  CONTRACTS  OF  INFANTS.  389 

now  seems  to  be  that  the  contract  of  an  infant  is  in  no  case  absolutely 
void.  An  infant  may,  as  a  general  rule,  disaffirm  any  contract  into 
which  he  has  entered ;  but,  until  he  does  so,  the  contract  may  be  said 
to  subsist,  capable  of  being  made  absolute  by  affirmance,  or  void  by 
disaffirmance,  on  his  arriving  at  age.  In  other  words,  infancy  con- 
fers a  privilege,  rather  than  imposes  a  disability."  According  to  this 
doctrine,  some  of  the  courts,  contrary  to  the  cases  heretofore  referred 
to,  regard  powers  or  appointments  of  attorneys,  and  all  appointments 
of  agents,  merely  voidable  by  the  infant  at  his  option.®^  And  the 
same  is  true  of  contracts  of  suretyship  and  obligations  with  a  pen- 
alty."' The  cases  are  uniform  in  holding  an  infant's  conveyances  or 
mortgages  of  real  estate,  his  purchases  of  real  estate,  and  his  sales, 
mortgages,   and  purchases   of  personal  property,   merely   voidable.** 


Mustard  v.  Wohlford's  Heirs,  15  Grat.  (Va.)  329,  76  Am.  Dec.  209;  Cole  v. 
Pennoyer,  14  III.  1.58;  Illinois  Land  &  Loan  Co.  v.  Bonner,  75  111.  315;  Boze- 
man  v.  Browning,  31  Ark.  364 ;  Weaver  v.  Jones,  24  Ala.  420 ;  Kendrick  v. 
Neisz,  17  Colo.  506,  30  Pac.  245;  Pars.  Cont.  295;  Pollock,  Cont.  52.  Tlie 
modern  rule  has  been  followed  in  regard  to  all  classes  of  contracts.  For  col- 
lection of  authorities  in  regard  to  particular  contracts,  see  22  Cyc.  pp.  527- 
538,  580-600. 

6  2  Whitney  v.  Dutch,  14  Mass.  457,  7  Am.  Dec.  229;  Hardy  v.  Waters,  38 
Me.  450 ;  Towle  v.  Dresser,  73  Me.  252;  Alsworth  v.  Cordtz,  31  Miss.  32.  See, 
also,  Ferguson  v.  Railway  Co.,  73  Tex.  344,  11  S.  W.  347. 

63  Suretyship,  Owen  v.  Long,  112  Mass.  403;  Reed  v.  Lane,  61  Vt.  481,  17 
Atl.  796;  Fetrow  v.  Wiseman,  40  Ind.  148;  Williams  v.  Harrison,  11  S.  C. 
412;  Helland  v.  Colton  State  Bank,  20  S.  D.  325,  106  N.  W.  60;  Harner  v. 
Dipple,  31  Ohio  St.  72,  27  Am.  Rep.  496.  Bonds  with  a  penalty,  Mustard  v. 
Wohlford's  Heirs,  15  Grat.  (Va.)  329,  76  Am.  Dec.  209;  Weaver  v.  Jones,  24 
Ala.  420. 

6  4  Cole  V.  Pennoyer,  14  111.  158;  Irvine  v.  Irvine,  9  Wall.  617,  19  L.  Ed 
800;  Zouch  v.  Parsons,  3  Burrows,  1794;  Bigelow  v.  Kinney,  3  Vt.  353,  21 
Am.  Dec.  589;  Logan  v.  Gardner,  136  Pa.  588,  20  Atl.  62.j,  20  Am.  St.  Rep. 
939;  Henry  v.  Root,  33  N.  Y.  526;  Callis  v.  Day,  38  Wis.  643;  Manning  v. 
Johnson,  26  Ala.  446,  62  Am.  Dec.  732;  French  v.  McAndrew,  61  Miss.  187; 
Tillery  v.  Land,  136  N.  C.  537,  48  S.  B.  824 ;  White  v.  Sikes,  129  Ga.  508,  59 
S.  E.  228,  121  Am.  St.  Rep.  228;  Tomczek  v.  Wieser,  58  Misc.  n(*[X  46,  108 
N.  Y.  Supp.  784 ;  Lawder  v.  Larkin  (Tex.  Civ.  App.)  94  S.  W.  171 ;  Eldriedge 
V.  Hoefer  (Or.)  93  Pac.  246;  Robinson  v.  Allison,  192  Mo.  366,  91  S.  W.  115; 
Shaffer  v.  Detie,  191  Mo.  377,  90  S.  W.  131 ;  Hiles  v.  Hiles,  82  S.  W.  580,  26 
Ky.  Law  Rep.  824,  rehearing  denied  83  S.  W.  615.  26  Ky.  Law  Rep.  1264; 
Smith  V.  Smith's  Ex'r,  107  Va.  112,  57  S.  E.  577,  12  L.  R.  A.  (N.  S.)  1184,  122 
Am.  St.  Rep.  831. 


390  INFANTS.  (Ch.  14 

The  same  may  be  said  of  most  other  contracts, — partnership  agree- 
ments,®°  agreements  to  render  services,"  promissory  notes,®^  indorse- 
ments of  a  bill  or  note,®^  lease  by  or  to  infant, ^°  submission  to  arbitra- 
tion,^" settlement  of  disputed  boundary,^^  compromise  of  action  or 
claim,'^  release  of  damages,^'  promise  to  marry/* 

«6  Dun  ton  v.  Brown,  31  Mich.  182;  Gordon  v.  Miller,  111  Mo.  App.  342,  85 
S.  W.  943.  A  minor  who  has  entered  into  a  partnership  may  disaffirm  the 
partnership  agreement,  and  withdraw,  and  he  may  plead  his  infancy  as  a  de- 
fense against  personal  liability  for  the  firm  debts.  Shirk  v.  Shultz,  113  Ind. 
571,  15  N.  E.  12;  Dunton  v.  Brown,  31  Mich.  182;  Bush  v.  Linthicum,  59  Md. 
344;  Adams  v.  Beall,  67  Md.  53,  8  Atl.  664,  1  Am.  St.  Rep.  379;  Yates  v. 
Lyon,  61  N.  Y.  344;  Whittemore  v.  Elliott,  7  Hun  (N.  Y.)  518.  But  he  cannot 
withdraw  what  he  has  invested  in  the  business  from  the  claims  of  firm  credit- 
ors. Shirk  V.  Shultz,  supra  ;  Adams  v.  Beall,  supra;  Kitchen  v.  Lee,  11  Paige 
(N.  Y.)  107,  42  Am.  Dec.  101 ;  Page  v.  Morse,  128  Mass.  99 ;  Skinner  v.  Max- 
well, 66  N.  C.  45;  Furlong  v.  Bartlett,  21  Pick.  (Mass.)  401.  In  Moley  v.  Brine, 
120  Mass.  324,  it  was  held  that,  when  the  assets  of  the  firm  are  not  sufficient 
to  pay  the  partners  the  amount  invested  by  each  in  full,  the  infant  partner 
cannot  insist  on  payment  in  full,  but  is  only  entitled  to  share  in  the  assets  iu 
proportion  to  the  amount  which  he  invested. 

66  Vent  V,  Osgood,  19  Pick.  (Mass.)  572;  Clark  v.  Goddard,  39  Ala.  164,  84 
Am.  Dec.  777 ;  Harney  v.  Owen,  4  Blackf.  (Ind.)  337,  30  Am.  Dec.  662 ;  Ping 
Min.  &  Mill.  Co.  v.  Grant,  68  Kan.  732,  75  Pac.  1044. 

«7  Goodsell  V.  Myers,  3  Wend.  (N.  Y.)  479;  Fetrow  v.  Wiseman,  40  Ind.  148; 
Wamsley  v.  Lindenberger,  2  Rand.  (Va.)  478;  Earle  v.  Reed,  10  Mete.  (Mass.) 
389 ;  Minock  v.  Shortridge,  21  Mich.  314 ;  Watson  v.  Ruderman,  79  Conn.  687, 
66  Atl.  515 ;    Heffington  v.  Jackson,  43  Tex.  Civ.  App.  560,  96  S.  W.  108. 

6  8  Nightingale  v.  Withington,  15  Mass.  272,  8  Am.  Dec.  101;  Willis  v. 
Twambly,  13  Mass.  204;  Frazier  v.  Massey,  14  Ind.  382;  Briggs  v.  McCabe,  27 
Ind.  327,  89  Am.  Dec.  503. 

6»Zouch  V.  Parsons,  3  Burrows,  1794;  Griffith  v.  Schwenderman,  27  Mo. 
412. 

7  0  Jones  V.  Bank,  8  N.  Y.  228;  Millsaps  v.  Estes,  137  N.  C.  535,  50  S.  E. 
227,  70  L.  R.  A.  170,  107  Am.  St.  Rep.  496;  Barnaby  v.  Barnaby,  1  Pick. 
(Mass.)  221. 

71  Brown  v.  Caldwell,  10  Serg.  &  R.  (Pa.)  114,  13  Am.  Dec.  660. 

72  Ware  v.  Cartledge,  24  Ala.  622,  60  Am.  Dec.  489;  Baker  v.  Lovett,  6 
Mass.  78,  4  Am.  Dec.  88. 

7  3  Worthy  v.  Jouesville  Oil  Mill,  77  S.  C.  69,  57  S.  E.  634,  11  L.  R.  A.  (N 
S.)  690;    Chicago  Telephone  Co.  v.  Schulz,  121  111.  App.  573. 

74  Holt  V.  Ward  Clarencieux,  2  Strange,  937 ;  Hunt  v.  Peake,  5  Cow.  (N. 
Y.)  475,  15  Am.  Dec.  475;  Rush  v.  Wick,  31  Ohio  St.  521,  27  Am.  Rep,  523; 
Cannon  v.  Alsbury,  1  A.  K.  Marsh.  (Ky.)  76,  10  Am.  Dec.  709;  Warwick  v. 
Cooper,  5  Sneed  (Tenn.)  659.  In  McConlcey  v.  Barnes,  42  111.  App.  511,  it  was 
neld  that  a  statute  providing  that  persons  under  the  age  of  21  years  "may 
poutract  and  be  joined  in  marriage"  does  not  remove  an  infant's  disability 


§    199)  CONTRACTS   OF   INFANTS.  391 

Valid  Contracts. 

Voidable  contracts  are  in  one  sense  valid — that  is,  they  are  valid 
until  avoided;  but  the  term  "valid,"  as  used  in  reference  to  infants' 
contracts,  means  such  contracts  as  are  binding  on  the  infant  as  well 
as  on  the  contracting  party.  This  is  the  sense  in  which  the  term  is 
used  here.  While  most  contracts  made  by  an  infant  are  voidable  by 
him,  there  are  certain  contracts  which  bind. 

Quasi  contracts  or  contracts  created  by  law,  because  of  a  legal  du- 
ty on  the  part  of  the  party  bound,  are  as  binding  on  an  infant  as  on 
an  adult.  The  liability  of  a  husband  to  pay  for  necessaries  furnished 
to  his  wife  or  children,  and  the  liability  of  a  husband  to  pay  his  wife's 
antenuptial  debts,  are  imposed  on  infant  as  well  as  adult  husbands.''^ 
And  so  it  is  as  to  any  other  quasi  contractual  liability. ''*  These  kinds 
of  obligation  do  not  depend  upon  the  consent  of  the  person  bound,  but 
are  imposed  by  law,  and  therefore  the  reasons  for  which  an  infant  is 
allowed  to  avoid  his  contracts  do  not  apply.  As  will  be  seen,  the  lia- 
bility of  an  infant  for  necessaries  furnished  him  is  really  a  quasi  con- 
tractual liability,  and  might  properly  be  treated  under  this  head.  The 
importance  of  the  subject,  however,  makes  a  separate  treatment  ad- 
visable. 

Contracts  made  by  an  infant  under  authority  or  direction  of  a  stat- 
ute— as  when  he  executes  a  bond  for  the  support  of  a  bastard  child,^^ 
gives  a  recognizance  for  appearance  in  court,^^  enters  into  a  contract 
of  enlistment  in  the  army,^*  or  makes  an  assignment  under  a  statute 
allowing  "every  person"  to  assign  «" — cannot  be  avoided  by  him.  So, 
too,  it  is  provided  by  statute  in  some  states  that  an  infant  cannot  dis- 


so  as  to  render  him  liable  for  breach  of  his  promise  to  marry,  but  merely 
means  that  an  actual  marriage  by  an  infant  shall  be  valid. 

7  5  Roach  V.  Quick,  9  Wend.  (N.  Y.)  238;  Cole  v.  Seeley,  25  Vt.  220,  60  Am. 
Dec.  258;  Butler  v.  Breck,  7  Mete.  (Mass.)  1G4,  39  Am.  Dec.  708;  Nicholson 
V.  Wilborn,  13  Ga.  467;    Cantine  v.  Phillips'  Adm'r,  5  Har.  (Del.)  428. 

TO  Post,  p.  435,  note  96. 

11  People  V.  Moo  res,  4  Denio  (N.  Y.)  518,  47  Am.  Dec.  272. 

78  Tyler,  Inf.  §  122;  State  v.  Weatherwax,  12  Kan.  4G3;  Dial  v.  Wood,  9 
Baxt.  (Tenn.)  296. 

7  9  Rex  V.  Inhabitants  of  Rotherfield  Greys,  1  Bani.  &  C.  345;  U.  S.  v. 
Bainbridge,  1  Mason,  71,  83,  Fed.  Gas.  No.  14,497 ;  In  re  Hearn  (D.  C.)  32  Fed. 
141 ;  Com.  v.  Murray,  4  Bin.  (Pa.)  487,  5  Am.  Dec.  412 ;  U.  S.  v.  Blakeney,  3 
Grat.  (Va.)  405;  Com.  v.  Gamble,  11  Serg.  &  R.  (Pa.)  93;  In  re  Higgins.  16 
Wis.  351. 

«o  People  v.  Mullin,  25  Wend.  (N    Y.)  698. 


392  INFANTS.  (Ch.  14 

affirm  contracts  entered  into  with  one  who,  by  reason  of  the  infant's 
having  engaged  in  trade  or  business  as  an  adult,  had  reason  to  be- 
Heve  him  capable  of  contracting.^^ 

A  contract  executed  by  an  infant  which  the  law  could  have  com- 
pelled him  to  execute  is  binding,  and  cannot  be  avoided  by  him,  though 
actually  executed  without  the  intervention  of  the  law.  It  was  ac- 
cordingly held  in  the  leading  case  of  Zouch  v.  Parsons,^^  where  lands 
had  been  conveyed  to  an  infant  as  security,  and  a  reconveyance  made 
by  the  infant  on  payment  of  the  debt,  that  the  reconveyance  could 
not  subsequently  be  avoided.  So,  where  a  father  caused  lands  to  be 
placed  in  his  minor  son's  name  to  defraud  his  creditors,  and  there- 
after sold  the  lands  to  a  purchaser  for  a  valuable  consideration,  and 
the  infant  executed  a  deed  to  such  purchaser,  it  was  held  that  the  in- 
fant could  not  avoid  the  conveyance  on  coming  of  age.^*  So,  where 
an  infant  fraudulently  obtained  the  legal  title  to  real  estate  under  such 
circumstances  as  to  create  a  constructive  trust  in  favor  of  another, 
and  thereafter  deeded  the  property  to  the  beneficiary,  it  was  held  that 
he  could  not  disaffirm  his  deed  in  execution  of  the  trust,  since  it  was 
a  duty  which  a  court  of  equity  would  have  compelled  him  to  per- 
form.** So,  generally,  an  infant  cannot,  on  his  majority,  avoid  an 
act  which  he  could  have  been  compelled  to  perform.^^ 

When  an  infant  is  under  a  legal  obligation  to  do  an  act,  he  may 
bind  himself  by  a  fair  and  reasonable  contract  made  for  the  purpose 
of  discharging  the  obligation,  as  under  a  contract  for  necessaries  fur- 
nished his  wife  and  children,  where  the  parent  is  held  liable  for  his 
child's  support,^*  or  on  a  promissory  note  given  for  such  necessaries.^^ 
Money  advanced  at  the  request  of  an  infant  to  procure  his  release 
from  arrest  for  a  debt  incurred  for  necessaries,^^  or  to  pay  a  debt  for 

81  Beickler  v.  Guenther,  121  Iowa,  419,  96  N.  W.  895;  Southern  Cotton  Oil 
Co.  V.  Dukes,  121  Ga.  787,  49  S.  E.  788.  But  it  is  lield  in  these  cases  that 
the  infant  must  have  been  carrying  on  business  of  his  own  and  as  a  regular 
employment  for  a  livelihood  or  protit. 

82  3  Burrows,  1801. 

83  Elliott  V.  Horn,  10  Ala.  348,  44  Am.  Dec.  488;  Prouty  v.  Edgar,  6  Iowa, 
353 ;    Starr  v.  Wright,  20  Ohio  St.  97. 

84  Nordholt  v,  Nordholt,  87  Cal.  552,  26  Pile.  599,  22  Am.  St  Rep.  268. 

8c  2  Kent,  Comm.  242;  Tucker's  Lessee  v.  Moreland,  10  Pet.  58,  9  L.  Ed. 
345;  Sheldon's  Lessee  v.  Newton,  3  Ohio  St  494;  Trader  v.  Jarvis,  23  Wa. 
Va.  100. 

8  6  People  V.  Moores,  4  Denio  (N.  Y.)  518,  47  Am.  Dec.  272. 

8  7  Sawyer  v.  Cutting,  23  Vt  48G.  es  Clarke  v.  Leslie,  5  Esp.  28. 


§§   200-203)  CONTRACTS   OF  INFANTS.  393 

necessaries,® ®  can  be  recovered  from  him.  An  agreement  by  an  in- 
fant with  the  mother  of  his  illegitimate  child,  to  support  it,  was  held 
a  valid  claim  against  the  minor's  estate,  on  his  decease,  as  being  an 
agreement  to  perform  an  obligation  which  he  was  legally  bound  to  per- 
form.'"' A  note  given  by  an  infant  in  settlement  of  his  liability  for  a 
tort  has,  on  the  same  principle,  been  held  enforceable  against  him.^^ 

Acts  performed  by  an  infant  as  executor,  agent,  officer  of  a  corpo- 
ration, or  in  any  other  representative  capacity,  which  do  not  touch 
his  own  interest,  but  which  are  in  the  exercise  of  authority  intrusted 
to  him,  are  binding.®^  Such  a  contract  is  not  a  contract  of  the  infant. 
He  does  not  attempt  to  bind  himself.  There  is  no  reason  why  he 
should  not  act  as  agent  so  as  to  bind  another  who  has  duly  authorized 
him. 

In  some  jurisdictions  it  is  held  that,  if  the  contract  is  so  far  exe- 
cuted that  the  infant  has  received  the  consideration,  he  cannot  repudi- 
ate the  contract,  and  recover  what  he  has  paid,  unless  he  can  and  does 
place  the  other  party  in  statu  quo.^^  This  doctrine  is  not  generally 
accepted,  as  we  shall  presently  see,  in  cases  where  the  consideration 
cannot  be  returned.'* 


LIABILITY    FOR   NECESSARIES. 

200.  An  infant  is  liable  for  the  reasonable  value  of  necessaries  fur- 
nished to  him,  or  to  his  ^rife,  or,  in  some,  but  not  all,  juris- 
dictions, to  his  children,  where  he  refuses  or  neglects  to  pro- 
vide for  them.  'What  are  "necessaries"  •will  depend  upon  the 
circumstances  of  the  particular  case.  The  term  includes 
whatever  is  reasonably  needed  for  subsistence,  health,  com- 
fort, or  education,  taking  into  consideration  his  state,  sta- 
tion, and  degree  in  life.      The  term  does  not  include 

(a)  Wliat   is   purely  ornamental. 

(b)  "What   contributes   solely   to   pleasure. 

(c)  AVhat   he   is   already  fully   supplied   ivith. 


89  Randall  v.  Sweet,  1  Denio  (N.  Y.)  460. 

«o  Stowers  v.  Hollis,  83  Ky.  544 ;    Gavin  v.  Burton,  8  Ind.  69. 

91  Ray  V.  Tubbs,  50  Vt  688,  28  Am.  Rep.  519. 

92  Mete.  Cont.  66;    Schouler,  Dom.  Rel.  416;    Zouch  v.  Parsons,  3  Burrows, 
1794,  1802. 

9  3  2  Kent,  Comm.  240;  Adams  v.  Beall,  67  Md.  53,  8  Atl.  664,  1  Am.  St  Rep. 
379. 

94  Post,  p,  417. 


394  INFANTS.  (Ch.  14 

(d)  Articles  'which  might  other-arise  be  necessaries,  urhen  he  is  liv- 

ing under  the  care  of  his  parent  or  guardian,  and  is  supplied 
by  him  ivith  such  things  as  he  considers  necessary. 

(e)  What  concerns  his  estate  or  business,  and  not  his  person. 

(f)  He  is   not  liable  at  law,   though  it  is   otherwise  in  equity,   for 

money  borrow^ed  by  him,  though  expended  for  necessaries,  but 
he  is  liable  even  at  law  Tvhere  the  lender  applies  the  money 
himself,  or  sees  it  applied,  in  payment  for  necessaries,  or  pays 
it  for  necessaries   already  furnished. 

201.  Persons   supplying  an  infant  act  at  their  peril,  and  cannot  re- 

cover if  the  actual  circumstances  w^ere  such  that  the  things 
furnished  w^ere  not  necessaries. 

202.  It  is  the  province   of  the  court  to  determine  xirhether  the  par- 

ticular article  furnished  falls  within  the  definition  of  "neces- 
saries," and  of  the  jury  to  say  w^hether  they  are  necessaries 
under  the  circumstances  of  the  particular  case. 

203.  As  an  infant  is  liable  only  for  the  reasonable  value  of  the  nec- 

essaries furnished  him,  he  cannot  bind  himself  by  an  express 
contract  of  such  a  nature  that  the  consideration  cannot  be 
inquired  into;  but,  if  the  consideration  can  be  inquii-ed  into, 
an  express  contract  is  binding  to  the  extent  of  the  value  of 
the   necessaries. 

The  most  important  valid  contracts  of  an  infant — that  is,  contracts 
which  cannot  be  avoided  by  him — are  his  contracts  for  necessaries. 
The  privilege  of  avoiding  his  contracts,  which  the  law  recognizes  in 
certain  cases,  is  for  the  protection  of  the  infant,  and  there  is  no  reason 
to  relieve  him  from  his  contracts  for  necessaries.  On  the  contrary, 
it  might  be  a  great  hardship  if  he  could  not  pledge  his  credit  for  nec- 
essaries. Accordingly,  the  cases  are  uniform  in  holding  infants  bound 
to  a  certain  extent  by  such  contracts.  An  infant  is  also  liable  for  nec- 
essaries supplied  his  wife,"''  on  the  theory  that  he  is  answerable  for 
her  support;  and  he  has  also  been  held  liable  for  necessaries  supplied 
his  child.®'  His  liability  for  his  child's  necessaries  must  be  based  on 
the  parent's  duty  of  support;  and  in  England,  and  in  some  states  in 
this  country,  where  it  is  held  that  a  parent  is  under  no  common-law 
duty  to  support  his  children,®^  a  parent,  in  the  absence  of  some  con- 
es Turner  V.  Trisby,  1  Strange,  168;  Chappie  v.  Cooper,  13  Mees.  &  W. 
252;  Cantine  v.  Phillips'  Adm'r,  5  Har.  (Del.)  428;  People  v.  Moores,  4  Denio 
(N.  Y.)  518,  47  Am.  Dec.  272.  Or  family,  Chapman  v.  Hughes,  61  Miss.  339 ; 
Price  V.  Sanders,  60  Ind.  310. 

98  Van  Valkinburgh  v.  Watson,  13  Johns.  (N.  Y.)  480,  7  Am.  Dec.  395;    Ex 
parte  Ryder,  11  Paige  (N.  Y.)  185,  42  Am.  Dec.  109. 
»7  Ante,  p.  351. 


§§  200-203)  CONTRACTS  OF  INFANTS.  395 

tract,  express  or  implied,  is  not  liable  for  their  necessaries.®^  The 
principal  items  included  under  infant's  necessaries  are  his  food,  cloth- 
ing, lodging,  medical  attendance,  and  education.®*  Accordingly,  an  in- 
fant has  been  held  liable  for  board  supplied  him ;  *  for  food  and  lodg- 
ing at  an  hotel ;  ^  for  clothing,^  medicine,*  a  horse,  where  horseback 
exercise  was  prescribed  by  a  physician ;  °  for  dentist's  services ;  "  and 
for  a  common-school  education.^  Though  it  has  been  said  that  a  col- 
lege education  cannot  be  a  necessary,*  there  would  seem  to  be  no  rea- 

»8  "In  point  of  law,  a  father  who  gives  no  authority,  and  enters  into  no 
contract,  is  no  more  liable  for  goods  supplied  to  his  son  than  a  brother  or 
an  uncle  or  a  mere  stranger  would  be."  Lord  Abinger,  C.  B.,  in  Mortimore 
V.  Wright,  6  Mees.  &  W.  481.  Accord,  Shelton  v.  Spriugett,  11  C.  B.  452; 
Kelley  v.  Davis,  49  N.  H.  187,  6  Am.  Rep.  499;    Gordon  v.  Potter,  17  Vt  348. 

99  Co.  Litt.  172a ;  Reeve,  Dom.  Rel.  285 ;  Schouler,  Dom.  Rel.  §  411.  See, 
also,  Western  Union  Telegraph  Co.  v.  Greer,  115  Teun.  368,  89  S.  W.  327,  1 
L.  R.  A.  (N.  S.)  525,  holding  that  a  contract  between  an  infant  and  a  tele- 
graph company  for  the  transmission  of  a  telegram  to  the  infant's  parents 
requesting  money  for  the  infant,  who  was  practically  destitute  and  without 
work,  was  a  contract  for  necessaries. 

1  Bradley  v.  Pratt,  23  Vt.  378;  Barnes  v.  Barnes,  50  Conn.  572;  Rivers  v. 
Gregg,  5  Rich.  Eq.  (S.  C.)  274;  Squier  v.  Hydliff,  9  Mich.  274.  But,  when 
undergraduates  were  supplied  by  the  college  with  what  is  generally  neces- 
sary, dinners  supplied  at  private  rooms  were  held,  prima  facie,  not  neces< 
saries.  Wharton  v.  Mackenzie,  5  Q.  B.  tJ06;  Brooker  v.  Scott,  11  Mees.  & 
W.  67. 

2  Watson  V.  Cross,  2  Duv.  (Ky.)  147. 

3  Makarell  v.  Bachelor,  Cro.  Eliz.  583 ;  Glover  v.  Ott's  Adm'r,  1  McCord  (S. 
C.)  572.  But  not  for  clothing  to  an  unnecessary  amount.  Burghart  v.  Auger- 
stein,  6  Car.  &  P.  690 ;  Johnson  v.  Lines,  6  Watts  &  S.  (Pa.)  80,  40  Am.  Dec. 
542. 

4  Glover  v.  Ott's  Adm'r,  1  McCord  (S.  C)  572 ;  Werner's  Appeal,  91  Pa.  222. 
6  Hart  V.  Prater,  1  Jur.  623 ;    Cornelia  v.  Ellis,  11  111.  585.     But  a  buggy 

is  not  necessary  for  an  infant  not  engaged  in  any  business  requiring  the  use 
of  a  buggy,  nor  attending  school,  so  as  to  make  it  necessary  for  him  to  ride  to 
and  from  school.     Ileffingtou  v,  Jackson,  43  Tex.  Civ.  App.  500,  96  S.  W.  108. 

6  Strong  V.  Foote,  42  Conn.  203. 

7  Co.  Litt  172 ;  Middlebury  College  v.  Chandler,  16  Vt.  686,  42  Am.  Dec. 
537;  Price  v.  Sanders,  60  Ind.  310;  Pickering  v.  Gunning,  W.  Jones,  182; 
International  Text  Book  Co.  v.  Doran,  80  Conn.  307,  68  Atl.  255  (where  the 
question  whether  instruction  in  arithmetic  and  other  common  branches  was 
necessary  to  a  youth  who  had  finished  two  years  in  high  school  was  held  to 
be  one  of  fact).  Board  while  at  school.  Kilgore  v.  Rich,  S3  Me.  305,  22  Atl. 
176,  12  L.  R.  A.  859,  23  Am.  St.  Rep.  780. 

8  Middlebury  College  v.  Chandler,  16  Vt.  689,  42  Am.  Dec.  537.  So,  also, 
Gayle  v.  Hayes'  Adm'r,  79  Va.  542;   Smith,  Cont.  269. 


396  INFANTS.  (Ch.  14 

son  why  a  college  education  might  not  be  classed  as  a  necessary,  if 
suitable  to  the  infant's  situation  in  life.  As  was  said  in  an  English 
case:  "A  knowledge  of  the  learned  languages  may  be  necessary  for 
one ;  a  mere  knowledge  of  reading  and  writing  may  be  sufficient  for 
another."  ®  Yet  a  professional  education  has  been  held  not  to  be  a  nec- 
essary/" although  the  opposite  has  been  held  as  to  instruction  in  a 
trade.^^ 

An  infant's  necessaries  vary  according  to  the  person.  They  are 
not  restricted  to  what  is  necessary  to  support  life,  but  extend  to  ar- 
ticles fit  to  maintain  the  particular  person,  in  the  state,  situation,  and 
degree  in  life  in  which  he  is.^^  In  Hands  v.  Slaney/'  Lord  Kenyon 
said :  "But,  as  to  the  other  article  furnished — namely,  the  livery — I 
cannot  say  that  it  was  not  necessary  for  a  gentleman  in  the  defendant's 
situation  to  have  a  servant ;  and,  if  it  was  proper  for  him  to  have  one, 
it  was  equally  necessary  that  the  servant  should  have  a  livery.  The 
general  rule  is  clear  that  infants  are  liable  for  necessaries,  according 
to  their  degree  and  station  in  life."  In  a  Massachusetts  case  ^*  it  was 
said :  "It  would  be  difficult  to  lay  down  any  general  rule  upon  this 
subject,  and  to  say  what  would  or  what  would  not  be  necessaries. 
It  is  a  flexible,  and  not  an  absolute,  term,  having  relation  to  the  in- 
fant's condition  in  life,  to  the  habits  and  pursuits  of  the  place  in  which, 
and  the  people  among  whom,  he  lives,  and  to  the  changes  in  those  habits 
and  pursuits  occurring  in  the  progress  of  society.  Articles  which  are 
purely  ornamental  are  not  necessaries,  though,  if  useful  as  well  as 
ornamental,  they  may  be,  if  necessary  to  support  the  infant  properly 
m  his  station  in  life."  ^^  "Articles  of  mere  luxury  are  always  ex- 
cluded, though  luxurious  articles  of  utility  are  in  some  cases  allow- 

8  Peters  v.  Fleming,  6  Mees.  &  W.  42. 

10  Turner  v.  Gaither,  83  N.  C.  357,  35  Am.  Rep.  574;  Bouchell  v.  Clary,  3 
Brev.  (S.  C.)  194 ;  Wallin  v.  Highland  Park  (Jo.,  127  Iowa,  131,  102  N.  W.  831). 
Nor  religious  instruction.  St.  John's  Parish  v.  Brouson,  40  Conn.  75,  16  Am. 
Rep.  17. 

11  Cooper  V.  Simmons,  7  Hurl.  &  N.  707.  And  see  Mauldin  v.  Southern 
Shorthand  &  Business  University,  126  Ga.  681,  55  S.  E.  922. 

12  Parke,  B.,  in  Peters  v.  Fleming,  6  Mees.  &  W.  42;  Hands  v.  Slauey,  8 
Term  R.  578;  Ryder  v.  Wombwell,  L.  R.  4  Exch.  32;  Coates  v.  Wilson,  5 
Esp.  152 ;  Mauldin  v.  Southern  Shorthand  &  Business  University,  126  Ga.  681, 
55  S.  E.  922 ;  Wallace  v.  Leroy,  57  W.  Va.  263,  50  S.  E.  243,  110  Am.  St.  Rep. 
777;  McKanna  v.  Merry,  61  111.  177;  Jordan  v.  Coffield,  70  N.  C.  110;  Nichol- 
son V.  Spencer,  11  Ga.  007. 

13  8  Term  R.  578. 

14  Breed  v.  Judd,  1  Gray  (Mass.)  455. 

15  Peters  v.  Fleming,  6  Mees.  &  W.  42. 


§§  200-203)  CONTRACTS  OF  INFANTS.  397 

ed."  ^'  Likewise,  those  things  which  contribute  only  to  enjoyment, 
as  a  journey  taken  for  pleasure,  cannot  be  considered  as  necessaries.^^ 

To  come  under  the  head  of  necessaries,  the  articles  supplied  an  in- 
fant must  be  suitable  to  his  estate  and  degree,  not  only  in  point  of 
quality,  but  also  in  point  of  quantity;  ^®  and  if  a  minor  is  already  sup- 
plied, no  matter  from  what  quarter,  any  further  supply  of  goods  of 
the  same  description  will  not  be  necessaries.^*  Where  a  minor  is  liv- 
ing with  parent  or  guardian  who  provides  the  real  necessaries  of  life, 
the  minor  cannot  bind  himself  for  what  might  ordinarily  be  classed 
as  his  necessaries,  for  the  parent  or  guardian  has  the  right  to  decide 
in  what  way  the  minor  shall  live ;  ^'^  and,  when  a  minor  is  so  residing, 
a  presumption  arises,  rebuttable  by  proof,  that  he  is  supplied  with  nec- 
essaries.^^ 

Among  necessaries  can  be  included  only  such  things  as  concern  the 
person,  and  not  the  estate.^'    As  was  said  in  a  Massachusetts  case:  ^^ 

16  Chappie  V.  Cooper,  13  Mees.  &  W.  252. 

17  Harrison  v.  Fane,  1  Man.  &  G.  550;  McKanna  v.  Merry,  61  111.  179 ; 
House  V.  Alexander,  105  Ind.  109,  4  N.  E.  891,  55  Am.  Rep.  189;  Glover  v. 
Ott's  Adm'r,  1  MoCord  (S.  C.)  572;  Beeler  v.  Young,  1  Bibb  (Ky.)  519;  Mil- 
ler V.  Smith,  26  Minn.  248,  2  N.  W.  942,  37  Aju.  Rep.  407 ;  Pyne  v.  Wood,  145 
Mass.  558,  14  N.  E.  775;    Howard  v.  Simpkins,  70  Ga.  322. 

18  Burghart  v.  Angerstein,  6  Car.  &  P.  690;  Johnson  v.  Lines,  6  Watts  & 
S.  80,  40  Am.  Dec.  542;    Nicholson  v.  Spencer,  11  Ga.  607. 

19  Burghart  v.  Angerstein,  6  Car.  &  P.  690;  Barnes  v.  Toye,  13  Q.  B.  Div. 
410;  Davis  v.  Caldwell,  12  Gush.  (Mass.)  512;  Nicholson  v.  Wilborn,  13  Ga. 
467;  Perrin  v.  Wilson,  10  Mo.  451 ;  Guthrie  v.  Murphy,  4  Watts  (Pa.)  SO,  28 
Am.  Dec.  681.  But  see  Ryder  v.  Wombwell,  L.  R.  3  Exch.  90.  An  infant  who 
has  an  allowance  sufficient  to  supply  himself  with  necessaries  has  been  held 
not  to  be  liable  for  articles  supplied  on  credit.  Rivers  v.  Gregg,  5  Rich.  Eq. 
(S.  0.)  274.  For  collection  of  cases  on  this  point,  see  Ewell,  Lead.  Cas.  note, 
pp.  63,  64. 

20  2  Kent,  Comm.  240;  Bainbridge  v.  Pickering,  2  W.  Bl.  1325 ;  Hoyt  v. 
Casey,  114  Mass.  397,  19  Am.  Rep.  371;  Kline  v.  L'Amoureux,  2  Paige  (N.  Y.) 
419,  22  Am.  Dec.  652 ;  Elrod  v.  Myers,  2  Head  (Tenn.)  33 ;  Jones  v.  Colviu,  1 
McMul.  (S.  C.)  14;  Perrin  v.  Wilson,  10  Mo.  451;  Wailing  v.  Toll,  9  Johns. 
(N.  Y.)  141;  Guthrie  v.  Murphy,  4  Watts  (Pa.)  80,  28  Am.  Dec.  081;  Kraker 
v.  Byruni,  13  Rich.  Law  (S.  C.)  163. 

21  Hull's  Assignees  v.  Connolly,  3  McCord  (S.  C.)  6,  15  Am.  Dec.  612;  Per- 
rin V.  Wilson,  10  Mo.  451;  Mauldin  v.  Southern  Shorthand  &  Business  Uni- 
versity, 126  Ga.  681,  55  S.  E.  922;  McAllister  v.  Gatlin,  3  Ga.  App.  731,  60 
S.  E.  355 ;   Freeman  v.  Bridger,  49  N.  C.  1,  67  Am.  Dec.  258. 

2  2  Burton  v.  Anthony,  46  Or.  47,  79  Pac.  185,  68  L.  R.  A.  826,  114  Am.  St. 
Rep.  847,  holding  that  an  infant  was  not  bound  as  for  necessaries  on  a  loan 
of  money  to  redeem  land  from  mortgage  sale. 

28  Tupper  V.  Gadwell,  12  Mete.  (Mass.)  559,  46  Am.  Dec.  704. 


398  INFANTS.  (Ch.  14 

'The  wants  to  be  supplied  are,  however,  personal, — either  those  for 
the  body,  as  food,  clothing,  lodging,  and  the  like;  or  those  necessary 
for  the  proper  cultivation  of  the  mind."  Articles  used  by  him  in  busi- 
ness are  not  necessaries,  although  essential  thereto.  "His  buying  tc 
maintain  his  trade,  although  he  gain  thereby  his  living,  shall  not  bind 
him."  ^*  Building  material  used  in  the  erection  of  a  house  on  the  in- 
fant's land  does  not  come  under  the  head  of  necessaries,^'  and  a  me- 
chanic's lien  therefor  cannot  be  enforced  against  the  property. ^^  On 
the  same  principle,  an  infant  cannot  be  bound  by  a  contract  for  re- 
pairs to  be  made  on  his  real  estate,  though  necessary  to  prevent  im- 
mediate injury;  2^  nor  for  protection  by  insurance  against  fire;^^  nor 
for  life  insurance  ;^^  nor  for  legal  services  to  protect  his  property, ^° 
though  he  would  be  liable  for  such  services  in  defending  him  on  a 
criminal  charge.*^ 

24  Wbittingbam  v.  Hill,  Cro.  Jac.  494.     Accord,   Dilk  v.   Keighley,  2  Esp. 
480;    Wallace  v.  Leroy,  57  W.  Va.  263,  50  S.  E.  243,  110  Am.  St.  Rep.  777 
Lamkin  &  Foster  v.  Le  Doux,  101  Me.  581,  64  Atl.  1048,  8  L.  R.  A.  (N.  S.)  104 
Mason  v.  Wright,  13  Mete.   (Mass.)   306;    Paul  v.   Smith,  41  Mo.  App.  275 
House  V.  Alexander,  105  Ind.  109,  4  N.  E.  891,  55  Am.  Rep.  189;    Decell  v. 
Lewenthal,  57  Miss.  331,  34  Am.  Rep.  449;    Wood  v.  Losey,  50  Mich.  475,  15 
N.  W.  557.     But  this  question  is  regulated  by  statute  in  some  states.     See 
ante,  p.  391. 

25  Freeman  v.  Bridger,  40  N.  C.  1,  67  Am.  Dec.  258;  Wornock  v.  Loar,  11 
S.  W.  438,  11  Ky.  Law  Rep.  6. 

2  8  Jones,  Liens,  §  1239;  Price  v.  Jennings,  62  Ind.  Ill;  Bloomer  v.  Nolan, 
36  Neb.  51,  53  N.  W.  1039,  38  Am.  St.  Rep.  690. 

27Tupper  V.  Cadwell,  12  Mete.  (Mass.)  559,  46  Am.  Dec.  704;  Wallis  v. 
Bardwell,  126  Mass.  306 ;  Phillips  v.  Lloyd,  18  R.  I.  99,  25  Atl.  909 ;  West  v. 
Gregg's  Adm'r,  1  Grant,  Cas.  (Pa.)  53. 

28  New  Hampshire  Mut.  Fire  Ins.  Co.  v.  Noyes,  32  N.  H.  345. 

2  0  Simpson  v.  Prudential  Ins.  Co.  of  America,  184  Mass.  348,  68  N.  E.  673, 
63  L.  R.  A.  741,  100  Am.  St.  Hep.  560,  holding  that  the  fact  that  such  a  con- 
tract was  reasonable  and  prudent  was  immaterial.  For  a  full  discussion  of  the 
status  of  contracts  of  insurance  taken  out  by  an  infant,  see  Cooley,  Briefs 
on  the  Law  of  Insurance,  vol.  1,  pp.  72-77. 

80  Phelps  V.  Worcester,  11  N.  H.  51 ;  Mclsaac  v.  Adams,  190  Mass.  117,  7& 
N.  E.  654,  112  Am.  St.  Rep.  321.  But  see  Epperson  v.  Nugent,  57  Miss.  45. 
34  Am.  Rep.  434.  Money  advanced  to  pay  off  a  prior  mortgage  is  not  a  nec- 
essary. Magee  v.  Welsh,  18  Cal.  155;  Bicknell  v.  Bicknell,  111  Mass.  205; 
West  V.  Gregg's  Adm'r,  1  Grant,  Cas.  (Pa.)  53 

31  Barker  v.  Hibbard,  54  N.  H.  539,  20  Am.  Rep.  160;  Askey  v.  Williams. 
74  Tex.  294,  11  S.  W.  1101,  5  L.  R.  A.  176.  In  Munson  v.  Washband,  31  Conn. 
303,  S3  Am.  Dec.  151,  attorney's  services  in  a  civil  suit  were  held  necessaries. 


§§  200-203)  CONTRACTS  OF  INFANTS.  399 

An  infant  is  liable  for  money  expended  in  payment  of  necessaries 
furnished  to  him,  but  not  for  money  supplied  to  him,  to  be  by  him  ex- 
pended, although  it  is  actually  laid  out  for  necessaries.^^  "The  rea- 
son for  this  distinction  is  that  in  the  latter  case  the  contract  arises 
upon  the  lending,  and  that  the  law  will  not  support  contracts  which 
are  to  depend  for  their  validity  upon  a  subsequent  contingency."  ^•■' 
This  objection  does  not  arise,  however,  where  the  lender  applies  the 
money  himself,  or  sees  it  applied,  to  the  purchase  of  necessaries: 
and  in  such  case  the  infant  is  bound.^*  In  equity,  however,  the  in- 
fant is  liable  for  money  borrowed  to  pay  for  necessaries,  when  it  is 
so  applied,  even  by  the  infant,  because  the  lender  by  subrogation 
stands  in  the  place  of  the  person  paid.^"^ 

What  are  necessaries  is  a  mixed  question  of  law  and  fact.  It  is 
for  the  court  to  say  whether  the  articles  in  question  can  be  necessaries, 
and  for  the  jury  to  say  whether  they  are.^*  As  was  said  in  a  Massa- 
chusetts case:  "It  is  the  well-settled  rule  that  it  is  the  province  of 
the  court  to  determine  whether  the  articles  sued  for  are  within  the 
class  of  necessaries,  and,  if  so,  it  is  the  proper  duty  of  the  jury  to 
pass  upon  the  question  of  the  quantity,  quality,  and  their  adaptation 
to  the  condition  and  wants  of  the  infant."  ^^ 

An  infant  is  not  only  liable  on  his  contract  for  necessaries,  but,  the 
contract  being  one  implied  in  law,  he  is  liable  without  any  express 
contract.  Moreover,  his  express  contract,  which  is  other  than  the  con- 
tract implied  in  law,  will  not  bind  him.^*  For  instance,  the  law  im- 
plies an  agreement  on  his  part  to  pay  what  the  necessaries  are  rea- 

32  Ellis  V.  Ellis,  5  Mod.  3(JS;  Earle  v.  Peale,  10  Mod.  G7;  Clarke  v.  Leslie, 
5  Esp.  28;  Kilgore  v.  Rich,  83  Me.  305,  22  Atl.  176,  12  L.  R.  A.  859,  23  Am. 
St.  Rep.  780;  Randall  v.  Sweet,  1  Denio  (N.  Y.)  460;  Swift  v.  Bennett,  10 
Oush.  (Mass.)  438;  Beeler  v.  Young,  1  Bibb  (Ky.)  519;  Genereux  v.  Sibley, 
18  R.  I.  43,  25  Atl.  345 ;  Haine's  Adm'r  v.  Tarrant,  2  Hill  (S.  C.)  400 ;  Conn 
V.  Coburn,  7  N.  H.  3GS,  26  Am.  Dec.  746. 

33  Swift  V.  Bennett.  10  Ousb.  (Mass.)  438.  Accord,  Earle  v.  Peale,  10 
Mod.  67. 

34  Smith  V.  Oliphant,  2  Sandf.  (N,  Y.)  306 ;  Randall  v.  Sweet,  1  Denio  (N. 
Y.)  400. 

•    35  Marlow  v.  Pitfield,  1  P.  Wms.  558;    Price  v.  Sanders,  60  Ind.  310;    Hick- 
man V.  Hall's  Adm'rs,  5  Litt.  (Ky.)  338. 

36  Anson,  Cont.  Ill,  112;  Clark,  Cont  237;  Merriam  v.  Cunningham,  11 
Cush.  (Mass.)  40;  McKanna  v.  Merry,  61  111.  177;  Jordan  v.  ColHeld,  70  N.  C. 
110 ;   1  Pars.  Cont.  296,  and  cases  in  note  v. 

37  Merriam  v.  Cunnin.trham,  11  Cush.  (Mass.)  40. 

3  8  Jones  V.  Valentine's  School  of  Telegraphy,  122  Wis.  318,  99  N.  W.  1043. 


400  INFANTS.  (Ch.  14 

sonably  worth,  and  his  agreement  to  pay  more  is  voidable."  He  can- 
not be  liable  on  an  executory  contract  for  necessaries.*"  So,  too,  he 
may  avoid  any  contract  for  necessaries  the  consideration  of  which 
cannot  be  inquired  into.  Some  cases  go  so  far  as  to  hold  that  negotia- 
ble paper  given  for  necessaries,  even  as  between  the  original,  parties, 
is  void,  though  the  consideration  can  be  inquired  into,  since  it  could 
not  be  inquired  into  if  it  should  pass  into  an  innocent  third  party's 
hands  for  value.*^  There  are  other  cases  which  hold  that  a  note  giv- 
en for  necessaries  is  merely  voidable  as  between  the  original  parties, 
since  the  consideration  is  open  to  inquiry,  and  that  the  value  of  the 
articles  can  be  ascertained,  and  judgment  given  pro  tanto.** 


SAM£— RATIFICATION   AND   DISAFFIRMANCE. 

204.  A  promise  to  perform  an  isolated  act,  or  a  contract  that  is 
•wholly  executory,  is  of  no  effect  until  it  has  been  ratified; 
but  an  executed  contract,  or  a  contract  that  involves  con- 
tinuous rights  and  obligations,  is  valid  until  it  has  been  dis- 
affirmed. 

Some  voidable  contracts  of  an  infant  bind  him  unless  he  disaffirms 
them,  while  others  do  not  bind  him  unless  he  ratifies  them.    A  prom- 

88  Earle  v.  Reed,  10  Mete.  (Mass.)  387 ;  Davis  v.  Gay,  141  Mass.  531,  6 
N.  E.  549;  Beeler  v.  Young,  1  Bibb  (Ky.)  519;  Parsons  v.  Keys,  43  Tex.  557; 
Hyer  v.  Hyatt,  3  Cranch,  C.  C  276,  Fed.  Cas.  No.  6,977 ;  Dubose  v.  Wheddon, 
4  McCord  (S.  C.)  221;  Locke  v.  Smith,  41  N.  H.  346.  In  Stone  v.  Deunisou, 
13  Pick.  (Mass.)  1,  23  Am.  Dec.  654,  when  an  infant  entered  into  an  agree- 
ment to  labor  until  of  age,  in  consideration  of  being  furnished  with  board, 
clothing,  and  education,  it  was  held  that,  the  agreement  being  fair  and  rea- 
sonable when  entered  into,  the  infant  could  not  maintain  a  quantum  meruit 
for  his  services,  on  their  turning  out  to  be  worth  more  than  the  agreed  com- 
pensation. 

40  iMftiiidin  v.  Southern  Shorthand  &  Business  University,  3  Ga.  App.  800. 
60  S.  E.  358;  Jones  v.  Valentine's  School  of  Telegraphy,  122  Wis.  318,  99  N. 
W.  1043 ;   International  Text-Book  Ck).  v.  McKone,  133  Wis.  200,  113  N.  W.  438. 

*i  Williamson  v.  Watts,  1  Camp.  552;  Trueman  v.  Hurst,  1  Term  R.  40; 
In  re  Soltykoff  [1891]  1  Q.  B.  413 ;  Swasey  v.  Vanderheyden's  Adm'r,  10  Johns. 
(N.  Y.)  33;  Fenton  v.  White,  4  N.  J.  Law,  111 ;  McISIinn  v.  Richmonds,  6  Yerg. 
(Tenn.)  9;  Bouchell  v.  Clary,  3  Brev.  (S.  C.)  194;  McCrillis  v.  How,  3  N.  H. 
348;   Henderson  v.  Fox,  5  Ind.  489;   Morton  v.  Steward,  5  111.  App.  533. 

42  Earle  v.  Reed,  10  Mete.  (Mass.)  387;  Bradley  v.  Pratt,  23  Vt.  378;  Du- 
bose V.  Whcddou,  4  McCord  (S.  C.)  221 ;  Conn  v.  Coburn,  7  N.  H.  368,  26  Am. 
Dec.  746;  Aaron  v.  Harley,  6  Rich.  Law  (S.  C.)  26;  Askey  v.  Williams,  74 
Tex.  294,  11  S.  W.  1101,  5  L.  R.  A.  176;   Guthrie  v.  Morris,  22  Ark.  411. 


§    204)  CONTRACTS   OF    INFANTS.  401 

ise  to  perform  some  isolated  act,  or  a  contract  that  is  wholly  execu- 
tory, has  no  effect  until  it  is  ratified.  On  the  other  hand,  voidable 
contracts  which  are  wholly  or  partially  executed,  and  contracts  involv- 
ing continuing  rights  and  obligations,  need  no  ratification,  but  are 
binding  until  they  are  disaffirmed.  In  other  words,  it  may  be  laid 
down  as  a  general  rule  that  when  an  interest  in  property  of  a  fixed 
and  permanent  nature  is  vested  either  in  the  infant,  or  in  the  other 
party  to  the  contract,  under  an  executed  contract,  as  by  a  conveyance 
of  real  estate  or  transfer  of  personal  property,  or  when  the  infant  en- 
ters into  a  continuing  contractual  relation,  as  where  he  becomes  a 
partner  or  a  stockholder,  there  must  be  some  distinct  act  of  disaffirm- 
ance on  the  part  of  the  infant  to  avoid  the  contract.  Thus,  convey- 
ances of  land  to  an  infant  are  valid  until  disaffirmed ;  and  an  infant 
lessee  of  land  becomes  liable,  until  disaffirmance,  for  all  obligations  at- 
tached to  the  estate,  as  to  pay  rent  under  a  lease  rendering  rent,*-* 
and,  when  he  continues  in  possession  after  becoming  of  age,  he  is 
chargeable  with  the  arrears  which  have  accrued  during  his  minority.*' 
An  important  class  of  contracts  which  are  binding  upon  an  infant  un- 
til he  disaffirms  them  are  his  sales  and  conveyances  of  real  estate.  His 
conveyances  pass  a  good  title  to  the  purchaser,  subject  only  to  be  di- 
vested by  his  disaffirmance.*^  And  the  vendee  may  convey  his  title 
to  some  one  else,  subject  to  the  infant's  right  of  disaffirmance.*® 

When  an  infant  enters  into  a  partnership,  he  contracts  a  continu- 
ing obligation,  and  must  disaffirm  the  relation  on  reaching  his  major- 
ity, or  he  will  remain  a  partner,  and  be  liable  as  such.  His  mere  fail- 
ure to  disaffirm  will  render  him  liable  for  the  debts  of  the  firm  con- 
tracted subsequent  to  his  becoming  of  age,  without  proof  of  any  act 


43  Bottlller  V.  Newport,  21  Hen.  VI.  p.  31 ;  Northwestern  Ry.  Ck).  v.  Mc- 
Michael,  5  Exch.  114,  123 ;  Ketsey's  Case,  Cro.  Jac.  320.  But  see,  contra, 
Flexner  v.  Dickerson,  72  Ala.  318. 

44  Bac.  Abr.  "Infancy  and  Age,"  (1)  8;    Rolle,  Abr.  731. 

46  Irvine  v.  Irvine,  9  Wall.  617,  19  L.  Ed.  800;  Haynes  v.  Bennett,  53  Midi. 
15,  18  N.  W.  539;  Tunison  v.  Cbamblin,  88  111.  378;  Dixon  v.  Merritt,  21 
Minn.  196 ;  Scranton  v.  Stewart,  52  Ind.  68 ;  Green  v.  Green,  69  N.  Y.  553,  25 
Am.  Rep.  233,  and  cases  cited  In  notes  39^1,  p.  423,  post.  For  one  to  main- 
tain ejectment  for  land  deeded  by  iiim  while  an  infant,  he  must  disaffirm  the 
deed  before,  and  otherwise  than  by  bringing  the  action.  Tomczek  v.  Wieser,  58 
Misc.  Rep.  46.  108  N.  Y.  Supp.  784. 

46  Mustard  v.  Wohlford's  Heirs,  15  Grat  (Va.)  329,  340,  76  Am.  Dec.  209 ; 
Searcy  v.  Hunter,  81  Tex.  644,  17  S.  W.  372,  26  Am.  St.  Rep.  837;    Miles  v. 
Liugerman,  24  Ind.  385 ;   Palmer  v.  Miller,  25  Barb.  (N.  Y.)  399. 
TirF.P.&  D.Rel.(2d  Ed.)— 26 


402  INFANTS.  (Ch.  14 

on  his  part  as  a  partner  after  his  majority.*^  But,  to  render  him  lia- 
ble for  debts  of  the  firm  contracted  during  his  minority,  there  must 
be  a  ratification  of  them,  express  or  implied.**  His  mere  failure  to 
disaffirm  on  reaching  his  majority,  without  proof  of  subsequent  acts 
as  a  partner,  will  not  constitute  a  ratification,  but  failure  to  disaffirm, 
followed  by  acts  as  a  partner,  may.  We  will  consider  this  further 
when  we  come  to  ascertain  what  constitutes  a  ratification.*' 

A  further  illustration  of  an  infant's  contract  which  requires  some 
act  of  disaffirmance  to  avoid  it  is  the  position  of  an  infant  who  has 
become  a  stockholder  in  a  corporation.  "In  the  cases  already  decided 
upon  this  subject,  infants  having  become  shareholders  in  railway  com- 
panies have  been  held  liable  to  pay  calls  made  whilst  they  were  infants. 
They  have  been  treated,  therefore,  as  persons  in  a  different  situation 
from  mere  contractors,  for  then  they  would  have  been  exempt ;  but, 
in  truth,  they  are  persons  who  have  acquired  an  interest,  not  in  a 
mere  chattel,  but  in  a  subject  of  a  permanent  nature,  *  *  *  and 
with  certain  obligations  attached  to  it  which  they  are  bound  to  dis- 
charge, *  *  *  unless  they  have  elected  to  waive  or  disagree  to 
the  purchase  altogether."  ■***  When  an  infant  has  become  a  stock- 
holder, he  may  repudiate  the  contract  before  or  after  majority;  °^  but 
he  must  disaffirm  within  a  reasonable  time  after  his  majority,  or  he 
will  be  held  to  have  ratified  the  contract/*  and  will  be  liable  for 
calls." 

*7  Goode  V.  Harrison,  5  Barn.  &  Aid.  147. 

48  Tobey  v.  Wood,  123  Mass.  88,  25  Am.  Rep.  27;  Todd  v.  Clapp,  118  Mass. 
495;   Bush  v.  Lintliicum,  59  Md.  844. 

4  8  Post,  p.  408. 

so  Parke,  B.,  in  London  &  N.  W.  Ry.  Co.  v.  McMichael,  20  Law  J.  Exctt 
97,  5  Exch.  114. 

51  Loudon  &  N.  W.  Ry.  Co.  v.  McMichael,  20  Law  J.  Exch.  97;  Ebbetts'  Case, 
5  Ch.  App.  302 ;  Lumsden's  Case,  4  Ch.  App.  31 ;  Seeley  v.  Seeley-Howe-Le 
Van  Co.,  128  Iowa,  294,  103  N.  W.  961.  See  Cook,  Stock  &  S.  §§  6G,  250,  318, 
for  collection  of  cases  on  infant  stockholders. 

5  2  Lumsden's  Case,  4  Ch.  App.  31 ;  Cork  &  B.  Ry.  Co.  v.  Cazenove,  10  Q.  B. 
935 ;   Ebbetts'  Case,  5  Ch.  App.  302 ;   Mitchell's  Case,  L.  R.  9  Eq.  363. 

68  Dublin  &  W.  Ry.  Co.  v.  Black,  8  Exch.  ISL 


§§   205-207)  CONTRACTS  OF  INFANTS,  403 


SAME— TIME    OF   AVOIDANCE. 

205.  Ezecntory    contracts    or  executed   contracts   relating   to   person- 

alty may  be  avoided  by  an  infant  either  before  or  after  at- 
taining bis  majority;  but  conveyances  of  real  estate  cannot 
be  avoided  during  minority,  though  he  may  enter  and  take 
the   profits. 

206.  As  a  rule,  mere  lapse  of  time  after  attaining  his  majority  will 

not  bar  an  infant's  disafiBrxaance  of  his  executory  contract, 
but  in  a  fesxr  states  he  is  required  to  disaffirm  ivithin  a  rea- 
sonable time. 

207.  As  a  rule,  executed  contracts  must  be  disaf&rmed  ivithin  a  rea- 

sonable time  after  attaining  majority;  but  in  some  states  it 
is  held  that  the  right  to  avoid  a  conveyance  of  real  estate 
is  not  barred  by  acquiescence  for  any  period  short  of  that 
prescribed  by  the  statute  of  limitations. 

In  this  section  we  are  to  consider  the  time  within  which  an  infant 
may  avoid  his  contracts,  and  the  time  within  which  he  must  avoid 
them.  An  infant's  executory  contract  may  be  avoided  by  him  at  any 
time,  either  before  or  after  attaining  his  majority,  by  refusing  to  per- 
form it,  and  pleading  his  infancy  when  sued  for  a  breach  of  it.°*  In 
the  case  of  executed  contracts,  a  distinction  is  made  between  contracts 
relating  to  his  real  estate  and  contracts  relating  to  his  personalty.  A 
conveyance  of  his  land  by  an  infant  cannot  be  disaffirmed  during  his 
minority.^  ^  He  may  enter  on  the  land,  and  take  the  profits  until  the 
time  arrives  when  he  has  the  legal  capacity  to  affirm  or  disaffirm  the 
conveyance.  But  the  conveyance  is  not  rendered  void  by  the  entry. 
It  may  still  be  affirmed  after  he  reaches  his  majority."* 


64  Reeve,  Dom.  Rel.  254;  Rice  v.  Boyer,  108  Ind.  472,  9  N.  E.  420,  58  Am. 
Rep.  53;  Adams  v.  Beall,  67  Md.  53,  8  Atl.  G64,  1  Am.  St.  Rep.  370;  Vent  v. 
Osgood,  19  Pick.  (Mass.)  572;  Ray  v.  Haines,  52  111.  485;  Whitmarsh  v. 
Hall,  3  Denio  (N.  Y.)  375 ;   Petty  v.  Roberts,  7  Bush.  (Ky.)  410. 

0  5  Shreeves  v.  Caldwell,  135  Mich.  323,  97  N.  W.  7G4,  106  Am.  St.  Rep.  396; 
White  V.  Sikes,  129  Ga.  508,  59  S.  E.  228,  121  Am.  St  Rep.  228 ;  Damron  v. 
RatlifC,  123  Ky.  758,  97  S.  W.  401;  Watson  v.  Ruderman,  79  Conn.  687,  66 
Atl.  515,  holding,  further,  that  a  mortgagee  cannot  invoke  equity  to  compel  an 
infant  to  exercise  his  right  to  affirm  or  disathrm ;  Slater  v.  Rudderforth, 
25  xipp.  D.  C.  497,  holding  that  the  institution  of  a  suit  for  cancellation  of 
the  conveyance  is  a  sufficient  disaffirmance. 

B8  Welch  V.  Bunce,  83  Ind.  382;  Zouch  v.  Parsons,  3  Burrows,  1794  ;  Irvine 
V.  Irvine,  5  Minn.  61  (Gil.  44) ;   Bool  v.  Mix,  17  Wend.  (N.  Y.)  119,  31  Am.  Dec. 


404  INFANTS.  (Ch.  14 

This  rule  does  not  apply  to  a  sale  and  manual  delivery  of  chattels 
by  an  infant.  Such  a  contract  may  be  avoided  by  him  while  he  is  still 
an  infant.  In  Stafford  v.  Roof,"*^  a  leading  New  York  case,  it  was 
said:  "The  general  rule  is  that  an  infant  cannot  avoid  his  contract, 
executed  by  himself,  and  which  is  therefore  voidable  only,  while  he 
is  within  age.  He  lacks  legal  discretion  to  do  the  act  of  avoidance. 
But  this  rule  must  be  taken  with  the  distinction  that  the  delay  shall 
not  work  unavoidable  prejudice  to  the  infant,  or  the  object  of  his 
privilege,  which  is  intended  for  his  protection,  would  not  be  answer- 
ed. When  applied  to  a  sale  of  his  property,  it  must  be  his  land — a 
case  in  which  he  may  enter  and  receive  the  profits  until  the  power  of 
finally  avoiding  shall  arrive.  *  *  *  Should  the  law  extend  the 
same  doctrine  to  sales  of  his  personal  estate,  it  would  evidently  expose 
him  to  great  loss  in  many  cases ;  and  we  shall  act  up  to  the  principle 
of  protection  much  more  ejffectually  by  allowing  him  to  rescind  while 
under  age,  though  he  may  sometimes  misjudge,  and  avoid  a  contract 
which  is  for  his  own  benefit.  The  true  rule,  then,  appears  to  me  to  be 
that,  where  the  infant  can  enter  and  hold  the  subject  of  the  sale  till 
his  legal  age,  he  shall  be  incapable  of  avoiding  till  that  time ;  but  where 
the  possession  is  changed,  and  there  is  no  legal  means  to  regain  and 
hold  it  in  the  meantime,  the  infant,  or  his  guardian  for  him,  has  the 
right  to  exercise  the  power  of  rescission  immediately."  °*  The  rule 
is  very  general,  almost  universal,  that  an  infant  may  avoid  any  con- 
tract in  relation  to  his  personal  property  before  he  is  of  age.**'     Some 


285;  Hastings  v.  Dollarhide,  24  Cal.  195;  Baker  v.  Kennett,  54  Mo.  88; 
Stafford  v.  Roof,  9  Cow.  (N.  Y.)  626 ;   McCormic  v.  Leggett,  53  N.  C.  425. 

6  7  9  Cow.  626. 

0  8  Reeve,  Dom.  Rel.  254;  Schouler,  Dom.  Rel.  409;  Stafford  v.  Roof,  9 
Cow.  (N.  Y.)  626;  Price  v.  Furman,  27  Vt.  268,  65  Am.  Dec.  194;  Hoyt  v. 
Wilkinson,  57  Vt.  404;  Riley  v.  Mallory,  33  Conn.  201;  Carr  v.  Clough,  26 
N.  H.  280,  59  Am.  Dec.  345;  Towle  v.  Dresser,  73  Me.  252;  Willis  v.  Twambly, 
13  Mass.  204;  Cogley  v.  Cusliman,  16  Minn.  397  (Gil.  354) ;  Carpenter  v.  Car- 
penter, 45  Ind.  142.  But  see  Armitage  v.  Widoe,  36  Mich.  124.  And  see  the 
cases  cited  in  Clark,  Cont.  245. 

69  See  Shirk  v.  Shultz,  113  Ind.  571,  15  N.  E.  12;  Rice  v.  Boyer,  108  Ind. 
472,  9  N.  E.  420,  58  Am.  Rep.  53 ;  Shipley  v.  Smith,  102  Ind.  520,  70  N.  E.  803 
(disaffirmance  of  a  lease,  a  leasehold  being  regarded  as  personalty  in  Indiana); 
Price  V.  Furman,  27  Vt.  268,  65  Am.  Dec.  194 ;  Hoyt  v.  Wilkinson,  57  Vt.  404 ; 
Willis  V.  Twambly,  13  Mass.  204;  Stafford  v.  Roof,  9  Cow.  (N.  Y.)  628;  Bool 
V.  Mix,  17  Wend.  (N.  Y.)  119,  31  Am.  Dec.  285 ;  In  re  Huntenberg  (D.  C.)  153 
Fed.  768 ;   Cogley  v.  Cushman,  16  Minn.  397  (Gil.  354). 


I 


§§   205-207)  CONTRACTS   OF   INFANTS.  405 

courts  have  held  that  he  cannot  avoid  a  partnership  agreement,  and 
recover  what  he  has  put  into  the  firm,  until  he  attains  his  majority.'" 
Other  courts  hold  the  contrary,  on  the  ground  that  it  is  a  contract  in 
relation  to  his  personalty,  and  that  all  contracts  of  an  infant  in  rela- 
tion to  his  personal  property  may  be  disaffirmed  during  his  minority.'^ 
As  to  whether  a  contract  must  be  disaffirmed  by  an  infant  within 
a  reasonable  time  after  he  attains  his  majority,  the  authorities  are 
conflicting.  In  the  case  of  executory  contracts  requiring  ratification 
to  render  them  binding,  the  right  to  avoid  them  cannot  be  barred  by 
mere  silence,  without  more.  But  it  may  be  otherwise  where  the  cir- 
cumstances are  such  as  to  make  it  the  infant's  duty  to  speak,  for  in 
such  a  case  silence  or  acquiescence  may  amount  to  a  ratification.®^ 
In  the  case  of  those  contracts  which  require  disaffirmance  after  the 
infant  becomes  of  age,®^  such  as  conveyances  of  land,  sales  and  de- 
livery of  chattels,  and  the  like,  the  infant  must,  according  to  the  weight 
of  authority,  disaffirm  the  contract  within  a  reasonable  time  after  he 
attains  his  majority,  or  it  cannot  be  avoided  at  all.®*  Many  courts, 
however,  hold  that  a  conveyance  of  land  by  an  infant  need  not  be  dis- 
affirmed within  any  period  short  of  that  prescribed  by  the  statute  of 
limitations,  and  that  acquiescence  for  any  shorter  time  will  not  bar 


"oDunton  v.  Brown,  31  Mich.  182;  Armitage  v.  Widoe,  36  Mich.  130; 
Bush  V.  Linthicum,  59  Md.  344.  But  see  Adams  v.  Beall,  67  Md.  53,  8  Ati. 
664,  1  Am.  St.  Rep.  379. 

«i  Sbirk  V.  Shultz,  113  Ind.  571,  15  N.  E.  12;  Adams  v.  Beall,  67  Md.  53, 
8  Atl.  664,  1  Am.  St.  Rep.  379. 

«2  Post,  p.  411. 

83  Ante,  p.  400. 

«*  Delano  v.  Blake,  11  Wend.  (N.  Y.)  85,  25  Am.  Dec.  617 ;  Goodnow  v.  Em- 
pire Lumber  Co.,  31  Minn.  468,  18  N.  W.  283,  47  Am.  Rep.  798  (collecting  the 
cases);  Robinson  v.  Allison,  192  Mo.  366,  91  S.  W.  115;  In  re  Huntenberg 
(D.  C.)  153  Fed.  768;  Lawder  v.  Larkin  (Tex.  Civ.  App.)  94  S.  W.  171;  Bige- 
low  V.  Kinney,  3  Vt.  353,  21  Am.  Dec.  589;  Kline  v.  Beebe,  6  Conn.  494;  Wal- 
lace's Lessee  v.  Lewis,  4  Har.  (Del.)  75 ;  Hastings  v.  Dollarhide,  24  Cal.  195; 
Scott  V.  Buchanan,  11  Humph.  (Tenn.)  468;  Harris  v.  Cannon,  6  Ga.  382; 
Langdon  v.  Clayson,  75  Mich.  204,  42  N.  W.  805.  And  see  other  cases  cited  ir 
Clark,  Cont.  247.  Disaffirmance  must  be  within  one  year  in  some  states.  Hel- 
land  V.  Colton  State  Bank,  20  S.  D.  325,  106  N.  W.  60;  Luce  v.  Jestrab,  12 
N.  D.  548,  97  N.  W.  848.  In  Damron  v.  Ratlifif,  123  Ky.  758,  97  S.  W.  401,  it 
was  held  that  an  infant  may  ratify  a  conveyance  of  real  estate  by  failure  to 
disaffirm.  But  see  Gaskins  v.  Allen,  137  N.  C.  420,  49  S.  E.  919,  holding  that 
a  deed  executed  by  a  married  woman  while  a  minor  was  not  ratified  by  lapse 
of  time  with  no  disaffirmance  for  more  than  20  years. 


406  INFANTS.  (Ch.  14 

his  right  to  avoid  it.'"  In  some  states  it  is  provided  by  statute  that 
an  infant  is  bound  by  all  his  contracts  unless  he  disaffirms  them  with- 
in a  reasonable  time.®* 


SA2WE— VtTHO   MAY   AVOID    CONTRACT. 

208.  The  privilege  of  infancy  is  personal  to  tlie  infant,  and  he  alone 

can  take  advantage  of  it  during  his  life  and  sanity.  On  his 
death,  or  if  he  becomes  insane,  his  right  of  avoidance  passes 
to  his  heirs,  personal  representatives,  or  conservator,  or 
guardian. 

209.  The    other   party  to   the   contract,  not   being   himself  under  dis- 

ability, is  bound  if  the  infant  chooses  to  hold  him. 

The  right  to  avoid  a  contract  on  the  ground  of  infancy  is  a  right 
given  to  the  infant  for  his  protection.  It  is  a  personal  privilege,  and 
during  his  life  and  sanity  the  infant  alone  can  take  advantage  of  it.'^ 
Thus,  where  an  infant  payee  of  a  negotiable  note  transferred  it  by 
indorsement  to  a  third  party,  and  the  maker  subsequently  paid  the 
note  to  the  infant,  and  pleaded  such  payment  in  a  suit  against  him  by 
the  indorsee,  it  was  held  that  he  could  not  avoid  the  infant's  indorse- 
ment.®* So,  in  an  action  for  enticing  away  a  servant,  it  was  held  that 
the  defendant  could  not  escape  liability  by  showing  that  the  servant 
was  an  infant,  and  therefore  was  not  bound  by  the  contract  of  serv- 
ice.®" 

8  6  Drake's  Lessee  v.  Ramsay,  5  Ohio,  251;  Weeks  v.  Wilkins,  134  N.  C. 
516,  47  S.  E.  24 ;  Prout  v.  Wiley,  28  Mich.  164;  Sims  v.  Everhardt,  102  U.  S. 
300,  26  L.  Ed.  87 ;  Irvine  v.  Irvine,  9  Wall.  617,  19  L.  Ed.  800 ;  Lacy  v.  Pix- 
ler,  120  Mo.  383,  25  S.  W.  206;  Boody  v.  McKenney,  23  Me.  517;  Richardson 
V.  Pate,  93  Ind.  423,  47  Am.  Kep.  374 ;  Wells  v.  Seixas  (C.  C.)  24  Fed.  82,  and 
note  collecting  cases;  and  cases  cited  in  Clark,  Cont.  247.  In  Chicago  Tele- 
phone Co.  V.  Schulz,  121  111.  App.  573,  the  rule  was  applied  to  the  disaffirm- 
ance of  a  release  of  damages. 

66  Leacox  v.  Griffith,  76  Iowa,  89,  40  N.  W.  109;  McCullough  v.  Finley,  69 
Kan.  705,  77  Pac.  696 ;  Johnston  v.  Gerry,  34  Wash.  524,  76  Pac.  258,  77  Pac. 
503;   Johnson  v.  Storie,  32  Neb.  610,  49  N.  W.  371. 

6T  Keane  v.  Boycott,  2  H.  Bl.  511 ;  Nightingale  v.  Withington,  15  Mass. 
272,  8  Am.  Dec.  101 ;  Riley  v.  Dillon  &  Pennell,  148  Ala.  283,  41  South.  768 ; 
Chapman  v.  Duffy,  20  Colo.  App.  471,  79  Pac.  746;  Clark,  Cont.  242,  and 
cases  tliere  cited. 

6  8  Nightingale  v.  Withington,  15  Mass.  272,  8  Am.  Dec.  101. 

6  9  Koane  v.  Boycott,  2  H.  Bl.  511. 


§§    208-209)  CONTRACTS    OF   INFANTS.  407 

The  right  to  avoid  a  contract  on  the  ground  of  infancy  does  not 
pass  to  an  assignee  of  the  infant,  and  this  is  for  the  same  reason.'^" 
Thus,  where  an  assignee  in  insolvency  sought  the  aid  of  a  court  of 
equity  to  relieve  his  assignor's  estate  from  the  incumbrance  of  a  mort- 
gage executed  while  the  assignor  was  an  infant,  it  was  held  that,  since 
the  right  of  avoidance  was  for  the  infant's  protection,  he  alone  could 
have  the  benefit  of  it,  and  that  the  right  did  not  pass  to  the  assignee.''^ 
Though  there  are  a  number  of  cases  to  the  contrary,''^  it  has  often 
been  held  that  the  right  of  avoidance  does  not  pass  to  those  who  are 
the  infant's  privies  in  estate.^^  If  the  infant  becomes  insane,  his  right 
to  avoid  his  contracts  passes  to  his  guardian  or  conservator ;  ^*  and,  by 
the  weight  of  authority,  on  his  death,  the  right  passes  to  his  heirs  ""^  or 
his  personal  representatives.'^*  The  reason  of  the  rule  extends  only 
to  them,  it  has  been  said,  because  the  privilege  is  conferred  for  the  sole 
benefit  of  the  infant.  While  living,  he  should  be  the  exclusive  judge 
of  that  benefit;  and,  when  he  is  dead,  those  alone  should  interfere 
who  legally  represent  him.  If  his  contracts  could  be  avoided  by  third 
persons,  the  principle  would  operate,  not  for  his,  but  for  their,  bene- 
fit; not  when  he  chose  to  avail  himself  of  his  privileges,  but  when 
strangers  elected  to  do  it. 

The  other  party  to  the  contract,  if  he  is  not  under  any  disability 
himself,  cannot  avoid  it,  either  on  the  ground  of  the  other's  infancy, 


70  Whittingham's  Case,  8  Coke,  43;  Riley  v.  Dillon  &  Pennell,  148  Ala.  2S3, 
41  South.  7GS ;  Austin  v.  Trustees,  8  Mete.  (Mass.)  196,  203,  41  Am.  Dec.  497 ; 
Mansfield  v.  Gordon,  144  Mass.  168,  10  N.  E.  773 ;  Levering  v.  Heighe,  2  Md- 
Ch.  81;  Breckenridge's  Heirs  v.  Ormsby,  1  J.  J.  Marsh.  (Ky.)  236,  19  Am. 
Dec.  71;  Tyler,  Inf.  §  19. 

71  Mansfield  v.  Gordon,  144  Mass.  168,  10  N.  E.  773. 

7  2  Jackson  v.  Burchiu,  14  Johns.  (N.  Y.)  124;  Heeler's  Heirs  v.  Bullitt's 
Heirs,  3  A.  K.  Marsh.  (Ky.)  280,  13  Am.  Dec.  161.  See  Breckenridge's  Heirs 
V.  Ormsby,  1  J.  J.  Marsh.  (Ky.)  236,  19  Am.  Dec.  71,  for  discussion  of  this  ques- 
tion, and  Ewell,  Lead.  Cas.  90,  for  collection  of  authorities. 

7  3  Whittingham's  Case,  8  Coke,  43;  Austin  v.  Trustees,  8  Mete.  (Mass.) 
196,  41  Am.  Dec.  497 ;  Hoyle  v.  Stowe,  19  N.  C.  320 ;  Harris  v.  Ross,  112  Ind. 
.314,  13  N.  E.  873 ;  Singer  Mfg.  Co.  v.  Lamb,  81  Mo.  221 ;  Levering  v.  Heighe, 
2  Md.  Ch.  81. 

74  Chandler  v.  Simmons,  97  Mass.  508,  93  Am.  Dec.  117. 

76  Bac.  Abr.  "Infancy  and  Age"  (I)  6;  Tyler,  Inf.  §  19;  Illinois  Land  & 
Loan  Co.  v.  Bonner,  75  111.  315 ;  Levering  v.  Heighe,  2  Md.  Ch.  81 ;  Harvey  v. 
Briggs,  68  Miss.  60,  8  South.  274,  10  L.  R.  A.  62 ;    Veal  v.  Fortson,  57  Tex.  482. 

78  I'yler,  Inf.  §  16;   Ewell,  Lead.  Cas.  90,  with  collection  of  cases. 


408  INFANTS.  (Ch.  14 

^r  on  the  ground  that  there  is  no  mutuality/''  He  is  bound  if  the  in- 
fant chooses  to  hold  him.  A  court  of  equity,  however,  will  not  grant 
an  infant  specific  performance  of  the  contract  by  the  adult,  for  it  does 
not  exercise  its  power  to  compel  specific  performance,  unless  there  is 
mutuality  of  remedy/*  What  has  been  said  above  applies,  of  course, 
only  to  the  voidable  contracts  of  infants.  A  contract  which  is  held  to 
be  void  is  an  absolute  nullity,  and  may  be  attacked  by  any  one. 


SAME— VrHAT    CONSTITUTES    RATIFICATION. 

210.  In  some   jurisdictions,  by  statute,  ratification  of  a  contract  by 

an  infant  must  be  in  Tirriting.  In  the  absence  of  such  a  pro- 
vision, ratification  may  be  by  an  express  new  promise,  either 
■virritten  or  oral,  or,  by  the  ■weight  of  authority,  it  may  be  inx- 
plied  from  declarations  or  conduct  shoxring  an  intention  to 
adopt  the   contract  as  binding. 

211.  By  the   weight  of  authority,  the  promise  must  be  made   or  the 

acts  done  by  the  infant  with  knowledge  of  his  legal  right  to 
avoid  the  contract. 

In  some  jurisdictions  it  has  been  expressly  provided  by  statute  that, 
e.ccept  in  certain  cases,  no  action  shall  be  maintained  on  any  contract 
made  by  an  infant,  unless  he,  or  some  person  lawfully  authorized,  shall 
have  ratified  it  in  writing  after  he  attained  his  majority.^* 

In  the  absence  of  such  a  provision  as  this — and  it  exists  in  very 
tVw  jurisdictions — there  need  be  no  writing  at  all  to  constitute  a  rat- 
ification of  a  contract  made  by  an  infant.  Ratification  may  be  by 
words  or  by  acts.  As  to  the  sufficiency  of  particular  words  or  acts 
to  constitute  a  ratification,  the  authorities  are  not  agreed.  On  the 
contrary,  there  is  an  irreconcilable  conflict  in  the  decisions,  and  what 
would  be  sufficient  in  one  state  might  not  be  so  in  another.  The  im- 
portance of  this  branch  of  our  subject,  and  the  uncertainty  in  the  de- 
cisions, require  that  it  be  considered  at  some  length.     The  authori- 


77  Bao.  Abr.  "Infancy  and  Age"  (I)  4;  2  Kent,  Comm.  236. 

7  8  flight  V.  Bolland,  4  Russ.  298. 

7  9  It  was  so  provided  by  the  English  statute  (St.  9  Geo.  IV,  c.  14,  §  5)  known 
as  "Lord  Teuderden's  Act."  This  statute  has  been  repealed  by  St.  38  &  39 
Vict.  c.  66.  There  are  similar  provisions  in  a  few  of  our  states.  See  Thur- 
low  V.  Gilnrore,  40  Me.  378 ;  Lamkin  &  Foster  v.  Ledoux,  101  Me.  581,  64  Atl. 
1048,  8  L.  R.  A.  (N.  S.)  104 ;  Exchange  Bank  of  Ff.  Valley  v.  McMillan,  76  S. 
C.  561,  57  S.  E.  630. 


§§   210-211)  CONTRACTS   OP   INFANTS.  409 

ties  seem  to  agree  that  there  must  be  a  new  promise  by  the  infant  after 
he  attains  his  majority.  They  also  seem  to  agree,  however,  that  there 
need  not  be  an  express  promise,  but  that  the  promise  may  be  implied 
from  his  declarations  or  his  conduct,  just  as  an  original  promise  may 
be  implied  from  words  or  conduct.  The  conflict  in  the  cases  is  as  to 
the  inference  to  be  drawn  from  particular  acts  or  declarations. 

Many  of  the  courts  hold  that  a  mere  acknowledgment  of  the  con- 
tract or  debt,  whether  by  words  or  by  acts,  as  by  a  part  payment, 
which  would  be  sufficient  to  revive  a  debt  barred  by  the  statute  of 
limitations,  will  not  constitute  a  ratification,  but  that  there  must  be 
a  new  promise,^"  It  was  said  by  the  Massachusetts  court:  "By  the 
authorities,  a  mere  acknowledgment  of  the  debt,  such  as  would  take 
a  case  out  of  the  statute  of  limitations,  is  not  a  ratification  of  a  con- 
tract made  during  minority.  The  distinction  is  undoubtedly  well  tak- 
en. The  reason  is  that  a  mere  acknowledgment  avoids  the  presump- 
tion of  payment  which  is  created  by  the  statute  of  limitations ;  where- 
as the  contract  of  an  infant  may  always,  except  in  certain  cases  suffi- 
ciently known,  be  voided  by  him  by  plea,  whether  he  acknowledges  the 
debt  or  not;  and  some  positive  act  or  declaration  on  his  part  is  nec- 
essary to  defeat  his  power  of  avoiding  it."  ^^  This  rule  is  clearly  right 
if  it  is  intended  to  hold  that  a  mere  acknowledgment  that  the  con- 
tract was  made  by  the  infant  is  not  a  ratification ;  but  it  is  not  sound  if 
it  is  intended  to  hold  that  an  infant  does  not  ratify  his  contract  by  ac- 
knowledging, after  he  has  attained  his  majority,  that  it  is  then  bind- 
ing upon  him.    This  is  a  ratification.^*    By  the  great  weight  of  opin- 

80  Edmunds  v.  Mister,  58  Miss.  765 ;    Whitney  v.  Dutch,  14  Mass.  457,  7 
Am.  Dec.  229 ;    Smith  v.  Mayo,  9  Mass.  62,  6  Am.  Dec.  28;   Thrupp  v.  Fielder, 

2  Esp.  628;  Proctor  v.  Sears,  4  Allen  (Mass.)  95;  Hale  v.  Gerrish,  8  N.  H. 
374 ;  Tibbets  v.  Gerrish,  25  N.  H.  41,  57  Am.  Dec.  307 ;  Wilcox  v.  Roath,  12 
Conn.  550;  Catlin  v.  Haddox,  49  Conn.  4d2,  44  Am.  Rep.  249;   Stokes  v.  Brown, 

3  Pin.  (Wis.)  311 ;  Kendricli  v.  Neisz,  17  Colo.  506,  30  Pac.  245 ;  Fetrow  v. 
Wiseman,  40  Ind.  148.  In  Edmunds  v.  Mister,  supra,  it  was  said  that  execu- 
tory contracts  of  infants  "can  be  ratified  at  common  law  only  by  an  act  or 
agreement  which  possesses  all  the  ingredients  necessary  to  a  new  contract, 
save  only  a  new  consideration.  The  contract  made  during  minority  will  fur- 
nish the  consideration,  but  it  will  furnish  nothing  more.  All  else  must  be 
supplied  by  the  new  agreement.  A  mere  acknowledgment  of  the  debt  is  not 
sufficient,  but  there  must  be  an  express  promise  to  pay,  voluntarily  made." 

81  Whitney  v.  Dutch,  14  Mass.  457,  7  Am.  Dec.  229. 

82  Henry  v.  Root,  33  N.  Y.  526;  American  Mortg.  Co.  v.  Wright,  101  Ala. 
658,  14  South.  399;   Little  v.  Duncan,  9  Rich.  Law  (S.  C.)  55,  64  Am.  Dec.  700. 


410  INFANTS.  (Ch.  14 

ion,  the  question  is,  in  all  cases,  whether  the  words  or  acts  of  the  in- 
fant after  he  has  attained  his  majority  show  an  intention  on  his  part 
to  adopt  the  contract  as  binding  upon  him,  and,  if  they  do  show  such 
an  intention,  a  new  promise  or  ratification  is  to  be  implied.®'  As 
was  said  by  the  Vermont  court  in  a  late  case:  "Where  the  declara- 
tions or  acts  of  the  individual  after  becoming  of  age  fairly  and  justly 
lead  to  the  inference  that  he  intended  to,  and  did,  recognize  and  adopt 
as  binding  an  agreement  executory  on  his  part,  made  during  infancy, 
and  intended  to  pay  the  debt  then  incurred,  we  think  it  is  sufficient  to 
constitute  ratification,  provided  the  declarations  were  freely  and  un- 
derstandingly  made,  or  the  acts  in  like  manner  performed,  and  with 
knowledge  that  he  was  not  legally  liable."  ^*  So,  in  a  late  Alassa- 
chusetts  case,  it  was  said :  "Ratification  may  be  shown  either  by  proof 
of  an  express  promise  to  pay  the  debt,  made  by  the  infant  after  he 
became  of  age,  or  by  proof  of  such  acts  of  the  infant,  after  he  became 
of  age,  as  fairly  and  justly  lead  to  the  inference  that  he  intended  to 
ratify  the  contract,  and  pay  the  debt."  ®^  And  in  an  English  case  it 
was  said:  "Any  act  or  declaration  which  recognizes  the  existence  of 
the  promise  as  binding  is  a  ratification  of  it."  ®° 

To  illustrate:  It  has  been  held,  and  very  properly,  that  a  mort- 
gage given  by  an  infant  is  ratified  by  payment  of  the  interest  coupon 
notes  after  becoming  of  age,*^  and  that  giving  a  watch  in  part  pay- 
ment of  a  note  executed  during  minority  is  a  ratification  of  the  note.®* 
This  is  clearly  a  recognition  of  the  contract,  not  merely  as  having 
been  made,  but  as  binding.  So,  it  has  been  held  that  bringing  a  suit 
to  enforce  payment  of  a  note  is  a  ratification  of  the  contract  in  which 
the  note  was  given.®* 


83  Hatch  V.  Hatch's  Estate,  60  Vt  160,  13  Atl.  791 ;  Tobey  v.  Wood,  123 
Mass.  SS,  25  Am.  Rep.  27;  Harris  v.  Wall,  1  Exch.  130;  Henry  v.  Root,  33 
N.  Y.  52G;  Middleton  v.  Hoge,  5  Bush  (Ky.)  478;  Baker  v.  Kennett,  54  Mo. 
88;  Keiidrick  v.  Neisz,  17  Colo.  506,  30  Pac.  245;  Wheaton  v.  East,  5  Yerg. 
(Tenn.)  41,  62,  26  Am.  Dec.  251;  Hale  v.  Gerrish,  8  N.  H.  374;  Emmons  v. 
Murray,  16  N.  H.  385;  Drake  v.  Wise,  36  Iowa,  476;  Thomasson  v.  Boyd,  13 
Ala.  419. 

8  4  Hatch  V.  Hatch's  Estate,  60  Vt.  100,  13  Atl.  791. 

8B  Tobey  v.  Wood,  123  Mass.  88,  25  Am.  Rep.  27. 

8  6  Harris  v.  Wall,  1  Exch.  130. 

87  American  Mortg.  Co.  v.  Wright,  101  Ala.  658,  14  South.  399.  Contra, 
Rapid  Transit  Land  Co.  v.  Sanford  (Tex.  Civ.  App.)  24  S.  W.  587. 

8  8  Little  V.  Duncan,  9  Rich.  Law  (S.  C.)  55,  64  Am.  Dec.  700. 

89  Morrill  v.  Aden,  19  Vt.  505. 


§§  210-211)  CONTRACTS  OF  INFANTS.  411 

The  cases  are  uniform  to  the  effect  that,  where  an  infant  purchases 
or  otherwise  acquires  property  under  a  contract,  he  ratifies  the  con- 
tract if  he  retains  and  uses  the  property  after  he  becomes  of  age,  or 
if  he  disposes  of  it  by  sale,  mortgage,  or  otherwise.  The  reason  of 
this  is  that  he  cannot  honestly  retain  or  dispose  of  the  property  except 
upon  the  assumption  that  the  contract  by  which  he  acquired  it  is  valid, 
and  therefore  such  conduct,  if  unexplained,  fairly  and  justly  leads  to 
the  inference  of  a  promise  or  undertaking  after  becoming  of  age,  to 
pay  for  the  property.*"  The  New  York  court  even  went  so  far  as  to 
hold,  in  applying  this  doctrine,  that  where  an  infant,  who  had  taken 
the  note  of  a  third  person  in  payment  for  work,  retained  the  note  for 
eight  months  after  attaining  his  majority  before  offering  to  return  it, 
and  in  the  meantime  the  maker  of  the  note  became  insolvent,  such  re- 
tention of  the  note  was  a  ratification  of  the  contract  under  which  it 
was  taken.  *^ 

Acquiescence  after  majority,  if  for  an  unreasonable  time,  is  held 
in  some  jurisdictions  to  amount  to  a  ratification  of  certain  contracts 
requiring  disaffirmance;  ^^  i^yj.^  {^  ^.j-jg  ^^^^  Qf  executory  contracts, 
mere  silence  or  acquiescence,  unaccompanied  by  acts  indicating  an  in- 
tention to  abide  by  the  contract,  will  not  amount  to  a  ratification.®^ 
While  in  many  jurisdictions,  as  has  been  seen,  mere  acquiescence  is 
not  evidence  of  the  affirmance  of  an  infant's  deed,®*  yet,  where  this  is 
accompanied  by  other  circumstances  indicating  a  clear  intention  to 

eoTobey  v.  Wood,  123  Mass.  81),  25  Am.  Rep.  27;  Boyden  v,  Boyden,  9 
Mete.  (Mass.)  519;  Chandler  v.  Simmons,  97  Mass.  508,  93  Am.  Dec.  117; 
Smith  V.  Kelley,  13  Mete.  (Mass.)  309 ;  Aldrich  v.  Grimes,  10  N.  H.  194 ;  Rob- 
bins  V.  Eaton,  Id.  561 ;  Lawson  v.  Lovejoy,  8  Greenl.  (Me.)  405,  23  Ajn.  Dec. 
526;  Eoody  v.  McKenney,  23  Me.  517;  Hatch  v.  Hatch's  Estate,  60  Vt.  160, 
13  Atl.  791;  Robinson  v.  Hoskins,  14  Bush  (Ky.)  393;  Cheshire  v.  Barrett,  4 
McCord  (S.  C.)  241,  17  Am.  Dec.  735.  If  the  retention,  use,  or  disposal  of  the 
property  is  not  inconsistent  with  the  repudiation  of  the  contract,  there  is  no 
ratification.  Todd  v.  Clapp,  118  Mass.  495 ;  Tobey  v.  Wood,  123  Mass.  88,  25 
Am.  Rep.  27 ;  House  v.  Alexander,  105  Ind.  109,  4  N.  E.  891,  55  Am.  Rep.  189. 
Thus,  retention  of  the  property,  after  tendering  it  and  being  met  by  a  refusal, 
is  not  to  be  construed  as  a  ratification.    House  v.  Alexander,  supra. 

81  Delano  v.  Blake,  11  Wend.  (N.  Y.)  85,  25  Am.  Dec.  617.  And  see  Thomas- 
son  V.  Boyd,  13  Ala.  419. 

8  2  Ante,  p.  405. 

osDurfee  v.  Abbott,  01  Mich.  471,  28  N.  W.  521;  Tyler  v.  Gallop's  Estate, 
68  Mich.  185,  35  N.  W.  902,  13  Am.  St.  Rep.  336 ;  Tobey  y.  Wood,  123  Mass. 
S8,  25  Am.  Rep.  27. 

94  Ante,  p.  405. 


412  INFANTS.  (Ch.  14 

confirm,  the  deed  cannot  thereafter  be  disaffirmed."  Thus,  a  person 
who  has  conveyed  land  during  minority  loses  his  right  to  disaffirm  if 
he  stands  by  and  sees  his  grantee  make  extensive  improvements  on 
the  land,^'  or  if  he  rents  the  land  from  his  grantee.'^  When  an  infant 
gives  a  lease  of  lands,  and,  after  majority,  accepts  rent,  this  will 
amount  to  a  ratification  of  the  lease, ®^  and  acceptance  after  majority 
of  the  proceeds  of  a  sale  of  real  estate  is  a  ratification  of  the  convey- 
ance.^^ If  an  infant  purchases  or  exchanges  land,  and  remains  in 
possession  after  majority,  this  will  constitute  an  affirmance  of  the 
contract.^  Likewise,  the  sale  after  majority  of  land  purchased  by 
an  infant,^  or  its  continued  use  and  occupation,^  is  a  ratification  of  a 
mortgage  given  to  secure  the  purchase  money;  and  this  is  true  al- 
though the  mortgage  is  given  to  a  third  person,  provided  the  convey- 
ance and  mortgage  are  made  at  the  same  time,  so  as  to  constitute 


»s  1  Pars.  Cont  323 ;  Tucker  v.  Moreland,  10  Pet.  58,  9  L.  Ed.  345 ;  Irvine  v. 
Irvine,  9  Wall.  617,  19  L.  Ed.  800.  A  deed  by  a  married  woman,  not  properly 
executed,  and  with  no  probate,  or  privy  examination  taken,  was  no  ratifica- 
tion of  a  prior  deed  executed  by  her  while  a  minor.  Gaskins  t.  Allen,  137 
N.  G.  426,  49  S.  E.  919. 

96  Wallace's  Lessee  v.  Lewis,  4  Har.  (Del.)  75 ;  Wheaton  v.  East,  5  Yerg. 
(Tenn.)  41,  62,  26  Am.  Dec.  251;  Davis  v.  Dudley,  70  Me.  236,  35  Am.  Rep. 
318;  Hartman  v.  Kendall,  4  Ind.  403;  Dolph  v.  Hand,  156  Pa.  91,  27  Atl.  114, 
36  Am.  St.  Rep.  25.    But  see  Brantley  v.  Wolf,  60  Miss.  420. 

8  7  Ingram  v.  Ison,  80  S.  W.  787,  26  Ky.  Law  Rep.  48. 

88  Ashfleld  V.  Ashfield,  W.  Jones,  157;  Paramour  v.  Yardley,  Plowd.  539, 
545a ;  Wimberly  v.  Jones,  Ga.  Dec.  91,  pt  1. 

88  Darraugh  v.  Blackford,  84  Va.  509,  5  S.  E.  542;  Damron  v.  Ratliflf,  123 
Ky.  758,  97  S.  Vi.  401 ;  Kinard  v.  Proctor,  68  S.  C.  279,  47  S.  E.  390 ;  Pursley 
V.  Hays,  17  Iowa,  310 ;  Davidson  v.  Young,  38  111.  145 ;  Ferguson  v.  Bell's 
Adm'r,  17  Mo.  347.  An  offer  to  give  a  confirmatory  deed  on  payment  of  the 
balance  of  the  purchase  money  is  not  an  affirmance.  Craig  v.  Van  Bebber, 
100  Mo.  584,  13  S.  W.  906,  18  Am.  St.  Rep.  569. 

1  Co.  Litt.  2b ;  Cecil  v.  Salisbury,  2  Vern.  225;  Henry  v.  Root,  33  N.  Y. 
526;  Hubbard  v.  Cummings,  1  Greenl.  (Me.)  11 ;  Bobbins  v.  Eaton,  10  N.  H.  561 ; 
Cheshire  v.  Barrett,  4  McCord  (S.  C.)  241,  17  Am.  Dec.  735 ;  Ellis  v.  Alford,  64 
Miss.  8,  1  South.  155 ;  Ihley  v.  Padgett,  27  S.  C  30O,  3  S.  E.  468 ;  Buchanan  v. 
Hubbard,  119  Ind.  187,  21  N.  E.  538. 

2  Uecker  v.  Koehn,  21  Neb.  559,  32  N.  W.  583,  59  Am.  Rep.  849 ;  Hubbard 
v.  Cummings,  1  Greenl.  (Me.)  11;  Young  v.  McKee,  13  Mich.  552;  Lynde  v. 
Budd,  2  Paige  (N.  Y.)  191,  21  Am.  Dec.  S4. 

3  Robbins  v.  Eaton,  10  N.  H.  561 ;  Hubbard  v.  Cummings,  1  Greenl.  (Me.)  11. 
When  an  infant  took  a  deed  of  land,  and  gave  back  a  purchase-money  mort- 


I 


§§    210-211)  CONTRACTS   OF   INFANTS.  413 

one  transaction.*  If  an  infant  makes  a  nrortgage,  and  after  majori- 
ty conveys  the  land,  stating  that  the  conveyance  is  made  subject  to 
the  mortgage,  this  recital  is  a  confirmation  of  the  mortgage."^ 

Mere  failure  of  an  infant,  on  attaining  his  majority,  to  disaffirm 
a  partnership  agreement  entered  into  during  his  minority,  without 
any  acts  as  a  partner,  will  not  constitute  a  ratification  of  contracts 
entered  into  by  the  firm;  but  a  failure  to  disaffirm,  followed  by  acts 
as  a  partner,  may.  The  cases  are  at  variance  as  to  what  acts  will 
amount  to  such  a  ratification.  It  has  been  held  that  transaction  of 
the  firm  business  after  majority,  payment  of  firm  debts,  and  partic- 
ipation in  the  profits,  is  not  sufficient ;  ®  but  there  are  cases  to  the 
contrary.'^ 

The  acts  relied  upon  as  constituting  a  ratification  must  be  un- 
equivocal, and  must  reasonably  lead  to  the  inference  that  there  was 
an  intention  to  adopt  and  be  bound  by  the  contract.  Unless  they 
show  such  an  intention,  ratification  cannot  be  implied.*  Thus, 
where  an  infant  becomes  a  member  of  a  firm,  his  remaining  in  the 
firm  after  becoming  of  age,  and  sharing  in  the  profits,  is  not  a  rati- 


gage,  which  was  subsequently  foreclosed,  by  bringing  ejectment  against  the 
purchaser,  she  was  held  to  have  confirmed  the  mortgage.  Kennedy  v.  Baker, 
159  Pa.  146,  28  Atl.  252 ;  Bigelow  v.  Kinney,  3  Vt.  353,  21  Am.  Dec.  589. 

4  Dana  v.  Coombs,  6  Greenl.  (Me.)  89,  19  Am.  Dec.  194 ;  Heath  v.  West,  28 
N.  H.  101.  ■V\Tien  the  conveyance  and  mortgage  are  not  one  transaction,  then 
It  ia  no  such  ratification.     Robbins  v.  Eaton,  10  N.  H.  561. 

B  Boston  Bank  v.  Chamberlin,  15  Mass.  220;  Phillips  v.  Green,  5  T.  B. 
Mon.  (Ky.)  344 ;  Losey  v.  Bond,  94  Ind.  67 ;  Allen  v.  Poole,  54  Miss.  323.  A  re- 
cital in  a  mortgage  made  after  majority,  that  the  property  is  subject  to  a 
prior  mortgage,  is  a  ratification  of  such  prior  mortgage.  Ward  v.  Anderson, 
111  N.  C.  115,  15  S.  E.  933.  See,  also,  Allen  v.  Anderson  &  Anderson  (Tex. 
Civ.  App.)  96  S.  W.  54,  holding  that  where  an  infant  conveyed  land  which  by 
mesne  conveyances  passed  to  a  third  person  as  a  remote  grantee,  and  on  at- 
taining majority,  conveyed  the  land  for  a  valuable  consideration  to  such  third 
person,  the  conveyance  did  not  ratify  the  former  deed,  but  vested  in  the  third 
person  the  infant's  title. 

6  Minock  v.  Shortridge,  21  Mich.  304 ;  Martin  v.  Tobln,  123  Mass.  85. 
.   7  Miller  v.  Sims,  2  Hill  (S.  C.)  479 ;  Salinas  v.  Bennett,  33  S.  C.  285,  11  S. 
E.  968. 

8  Todd  V.  Clapp,  118  Mass.  495;  Tobey  v.  Wood,  123  Mass.  88,  25  Am.  Rep. 
27 ;  House  v.  Alexander,  105  Ind.  109,  4  N.  B.  891,  55  Am.  Rep.  189 ;  Crabtree 
V.  May,  1  B.  Mon.  (Ky.)  289 ;  Martin  v.  Tobln,  123  Mass.  85 ;  Parsons  v.  Teller, 
188  N.  T.  318,  80  N.  E.  930,  reversing  111  App.  Div.  637,  97  N.  Y.  Supp.  80S. 


414  ^  INFANTS.  (Ch.  14 

fication  of  debts  contracted  by  the  firm  during  his  minority,  of  which 
he  is  ignorant,^  or  which  he  thinks  have  been  paid.^° 

A  new  promise  to  a  stranger  is  not  sufficient  to  constitute  a  rati- 
fication;  it  must  be  made  to  the  other  party  or  to  his  agent/^  If 
the  promise  is  conditional,  as  in  the  case  of  a  promise  to  pay  when 
able,  no  action  can  be  maintained  without  showing  performance  or 
happening  of  the  condition.^* 

In  an  early  English  case  it  was  said,  in  effect,  that  a  person  will 
not  be  bound  by  a  ratification  of  his  contract  made  during  infancy, 
unless  he  knows  that  he  is  not  liable  in  law.^^  This  proposition 
was  mere  dictum,^*  but  it  has  frequently  been  approved,  and  there 
are  many  decisions  supporting  it.^^  There  are  some  cases,  how- 
ever, which  hold  that  such  knowledge  on  the  part  of  the  infant  is 
not  necessary,  on  the  ground  that  ignorance  of  law  cannot  avail. ^"^ 
In  the  absence  of  evidence  to  the  contrary,  the  late  infant  will  be 
presumed  to  have  had  knowledge  of  his  legal  rights.' 


IT 


9  Crabtree  v.  May,  1  B.  Mon.  (Ky.)  289, 

10  Tobey  v.  Wood,  123  Mass.  88,  25  Am.  Rep.  27. 

iiBigelow  V.  Grannis,  2  Hill  (N.  Y.)  120;  Goodsell  v.  Myers,  3  Wend.  (N. 
Y.)  479. 

12  Everson  v.  Carpenter,  17  Wend.  (N.  Y.)  419;  Thompson  v.  Lay,  4  Pick. 
(Mass.)  48,  16  Am.  Dec.  325 ;  Kendrick  v.  Neisz,  17  Ck>lo.  5UG,  30  Pac.  245. 

13  Harmer  v.  Killing,  5  Esp.  102. 

14  Morse  v.  Wheeler,  4  Allen  (Mass.)  570. 

16  Hinely  v.  Margaritz,  3  Pa.  428;  Curtin  v.  Patton,  11  Serg.  &  R.  (Pa.) 
305;  Trader  v.  Lowe,  45  Md.  1;  Davidson  v.  Young,  38  111.  145;  Turner  v. 
Gaither,  83  N.  C.  357,  35  Am.  Rep.  574 ;  Thing  v.  Libbey,  16  Me.  55 ;  Burdett 
V.  Williams  (D.  C.)  30  Fed.  697 ;  Reed  v.  Boshears,  4  Sneed  (Tenn.)  118;  Norris 
V.  Vance,  3  Rich.  Law  (S.  C.)  164;  Petty  v.  Roberts,  7  Bush  (Ky.)  410;  Smith 
V.  Mayo,  9  Mass.  62,  6  Am.  Dec.  28;  Ford  v.  Phillips,  1  Pick.  (Mass.)  202; 
OwenV.  Long,  112  Mass.  403.  But  see  Morse  v.  Wheeler,  4  Allen  (Mass.)  570. 
A  confirmatory  deed  given  after  majority,  in  ignorance  of  legal  rights,  has 
been  set  aside  in  equity.    Wilson  v.  Insurance  Co.,  60  Md.  150. 

16  Anderson  v.  Soward,  40  Ohio  St.  325,  48  Am.  Rep.  687;  Clark  v.  Van 
Court,  ICO  Ind.  113,  50  Am.  Rep.  774;  American  Mortg.  Co.  v.  Wright,  101 
Ala.  658,  14  South.  399;  Ring  v.  Jamison,  66  Mo.  424;  Morse  v.  Wheeler,  4 
Allen  (Mass.)  570. 

iTTaft  V.  Sergeant,  18  Barb.  (N.  Y.)  820;  Hatch  V.  Hatch's  Estate,  60 
Vt  160,  13  Atl.  791. 


§    212)  CONTRACTS    OF   INFANTS.  415 

SAME— WHAT    CONSTITUTES    DISAFFIRMANCE. 

212.  A  contract  is  disaffirmed  by  any  conduct  whicli  is  inconsistent 
xrith  the  ezcistence  of  the  contract,  and  sho^vs  an  intention 
to  repudiate  it. 

Disaffirmance  of  a  contract,  like  ratification,  may  be  implied,  and 
it  will  generally  be  implied  from  any  conduct  that  is  clearly  incon- 
sistent with  the  existence  of  the  contract.^*  Where,  for  instance, 
a  person  who  has  sold  or  mortgaged  land  or  goods  while  an  infant 
sells,  leases,  or  mortgages  the  same  to  another  after  attaining  his 
majority,  this  is  a  disaffirmance  of  his  contract.^"     An  action  by  a 

ispyne  V.  Wood,  145  Mass.  558,  14  N.  E.  775;  Vent  v.  Osgood,  19  Pick. 
(Mass.)  572;  Whitmarsh  v.  Hall,  3  Deoio  (N.  Y.)  375;  Dallas  v.  Hollings- 
worth,  3  Ind.  537.  So  an  Infant,  by  suing  for  his  wages  on  a  quantum  meruit, 
repudiates  his  contract  for  the  services.  Fisher  v.  Kissinger,  27  Ohio  Cir. 
Ct.  R.  13. 

19  Tucker  v.  Moreland,  10  Pet.  58,  9  L.  Ed.  345 ;  Mustard  v.  Wohlford's  Heirs, 
15  Grat.  (Va.)  329,  76  Am.  Dec.  209;  Phillips  v.  Hoskins,  108  S.  W.  283,  33 
Ky.  Law  Rep.  378;  Vallandingham  v.  Johnson,  85  Ky.  288,  3  S.  W.  173; 
Corbett  v.  Spencer,  63  Mich.  731,  30  N.  W.  385 ;  Haynes  v.  Bennett,  53  Mich. 
15,  18  N.  W.  539;  Dawson  v.  Helmes,  30  Minn.  107,  14  N.  W.  462;  Chapin 
V.  Shafer,  49  N.  Y.  407;  Peterson  v.  Laik,  24  Mo.  541,  69  Am.  Dec.  441; 
Cresinger  v.  Welch's  Lessee,  15  Ohio,  156,  45  Am.  Dec.  505 ;  Pitcher  v.  Lay- 
cock,  7  Ind.  398;  McGan  v.  Marshall,  7  Humph.  (Tenn.)  121;  Den  v.  Stowe, 
19  N.  C.  323 ;  Jackson  v.  Carpenter,  11  Johns.  (N,  Y.)  539;  Buchanan  v.  Hub- 
bard, 119  Ind.  187,  21  N.  E.  538.  In  some  jurisdictions  a  person  is  not  al- 
lowed to  convey  land  which  is  in  the  adverse  possession  of  another.  Here, 
therefore,  an  infant  cannot  avoid  his  deed  of  land  by  a  sec-ond  deed,  executed 
while  his  first  grantee  or  another  is  in  the  adverse  possession  of  the  land. 
He  must  first  make  an  entry.  Harrison  v.  Adcock,  8  Ga.  68.  See  Bool  v. 
Mix,  17  Wend.  (N.  Y.)  133,  31  Am.  Dec.  285,  Where  an  infant  mortgages  land, 
and,  after  obtaining  his  majority,  conveys  the  land  by  warranty  deed,  with- 
out excepting  the  mortgage,  the  deed  is  a  disaffirmance  of  the  mortgage.  Dix- 
on v.  Merritt,  21  Minn.  196;  Allen  v.  Poole,  54  Miss.  323.  When  the  deed 
executed  after  the  infant  is  of  age  is  of  such  a  nature  that  it  is  not  incon- 
sistent with  the  prior  conveyance,  there  is  no  disaffirmance.  Leitensdorfer 
V.  Hempstead,  18  Mo.  209;  McGau  v.  Marshall,  supra;  Eagle  Fire  Ins.  Co.  v. 
Lent,  6  Paige  (N.  Y.)  635.  Thus,  a  quitclaim  deed  has  been  held  not  to  amount 
to  a  disaffirmance  of  a  prior  mortgage.  Shreeves  v.  Caldwell,  135  Mich.  323, 
97  N.  W.  764,  106  Am,  St.  Rep.  396;  Singer  Mfg.  Co.  v.  Lamb,  81  Mo.  221. 
And  see  Palmer  v.  Miller,  25  Barb.  (N.  Y.)  399.  But  see  Bagley  v.  Fletcher, 
44  Ark.  153,  where  a  quitclaim  deed  was  held  a  disaffirmance  of  a  prior  deed. 
At  one  time  disaffirmance  of  a  deed  of  land  was  required  to  be  by  some  act 
of  as  high  and  solemn  a  nature  as  the  deed,  and  the  doctrine  has  been  recog- 


416  INFANTS.  (Ch.  14 

person  after  becoming  of  age  to  recover  land  or  goods  sold  by  him 
during  his  minority  is  a  disafiBrmance  of  the  sale ;  ^°  and  a  contract 
is  disaffirmed  by  merely  pleading  infancy  when  suit  is  brought  to  en- 
force it. 


SAME— EXTENT   OF   RATIFICATION   OR   DISAFFIRMANCE. 

213.   The    ratification    or   disaffirmance   must   be    in   toto.      The    con- 
tract cannot  be  ratified  or  disaffirmed  in  part  only. 

The  disaffirmance  or  ratification  must  go  to  the  whole  contract. 
An  infant  cannot  ratify  a  part  which  he  deems  for  his  benefit,  and 
repudiate  the  rest.*^  He  cannot,  for  instance,  ratify  a  lease  to  him- 
self, and  avoid  a  covenant  in  it  to  pay  rent;  nor  can  he  hold  lands 
conveyed  to  him  in  exchange,  and  avoid  the  transfer  of  those  with 
which  he  parted ;  '^^  nor  can  he  hold  land  conveyed  to  him,  and  re- 
pudiate a  mortgage  given  at  the  time  as  part  of  the  same  transaction 

nized  by  the  Supreme  C!ourt  of  the  United  States,  and  by  some  of  the  state 
courts.  Pars.  Cont.  323 ;  Irvine  v.  Irvine,  9  Wall.  617,  19  L.  Ed.  800 ;  Tucker 
V.  Moreland,  10  Pet.  58,  9  L.  Ed.  345.  By  the  weight  of  authority,  this 
solemnity  is  no  longer  to  be  regarded  as  necessary ;  but  it  is  held  that  a  deed 
may  be  effectually  avoided  or  disaffirmed  by  any  acts  or  declarations  disclosing 
an  unequivocal  intent  to  repudiate  it,  Haynes  v.  Bennett,  53  Mich.  15,  18  N- 
W.  539  (collecting  the  cases) ;  Singer  Mfg.  Co.  v.  Lamb,  supra;  Tunison  v. 
Chamblin,  88  111.  378.  Re-entry  with  notice  of  intention  to  disaflfirm,  and  also 
a  written  notice  of  disaffirmance,  have  been  held  sufficient.  Green  v.  Green, 
69  N.  Y.  553,  25  Am.  Rep.  233 ;  Scranton  v.  Stewart,  52  Ind.  68. 

2  0  Clark  v.  Tate,  7  Mont.  171,  14  Pac.  761;  Craig  v.  Van  Bebber,  100  Mo. 
584,  13  S.  W.  906,  18  Am.  St.  Rep.  569 ;  Slater  v.  Rudderforth,  25  App.  D.  C. 
497  (holding  that  a  suit  for  cancellation  of  the  conveyance  is  a  sufficient  dis- 
affirmance) ;  Philips  V.  Green,  3  A.  K.  Marsh.  (Ky.)  7,  13  Am.  Dec.  124 ;  Stotts 
V.  Leonhard,  40  Mo.  App.  336;  Scott  v.  Buchanan,  11  Humph.  (Tenn.)  409; 
Hughes  V.  Watson,  10  Ohio,  134.  Where,  however,  the  action  is  based  on  the 
assumption  that  defendant  is  wrongfully  in  possession,  as  in  the  case  of  eject- 
ment, the  weight  of  authority  seems  to  require  that  there  shall  have  been 
some  previous  act  of  disaffirmance  on  the  part  of  the  infant,  for  nntil  dis- 
affirmance the  defendant  is  rightfully  in  possession.  See  Law  v.  Long,  41  Ind. 
586;  McClauahan  v.  Williams,  136  Ind.  30,  35  N.  E.  897;  Bool  v.  Mix,  17  Wend. 
(N.  Y.)  135,  31  Am.  Dec.  285 ;  Clawson  v.  Doe,  5  Blackf ,  (Ind.)  300 ;  Wallace's 
Lessee  v.  Lewis,  4  Har.  (Del.)  75. 

21  Badger  v.  Phinney,  15  Mass.  359,  8  Am.  Dec.  105 ;  Pecararo  v.  Pecararo 
(Sup.)  84  N.  Y.  Supp.  581;  Bigelow  v,  Kinney,  3  Vt  353,  21  Am.  Dec.  589; 
Lowry  v.  Drake's  Heirs,  1  Dana  (Ky.)  46. 

22  Buchanan  v.  Hubbard,  119  Ind.  187,  21  N.  E.  538. 


§§   214-215)  CONTRACTS   OF   INFANTS.  '  417 

to  secure  the  purchase  money.*"  So,  too,  an  infant  cannot  sue  for 
damages  or  statutory  penalties  for  the  negligent  transmission  of  a 
telegraph  message,  without  complying  with  a  stipulation  of  the  con- 
tract as  to  the  time  when  claims  must  be  presented.** 


SAME— RETURN    OF   CONSIDERATION. 

214.  An   infant    may   disafHrm   his   executory    contract    udtliont    first 

returning  the  consideration  received  by  liim;  but,  after  dis- 
affirmance, lie  must  return  the  consideration,  if  he  has  it. 

215.  As   a   rule,  if   the   contract  has   been   executed  by  him,   he   can- 

not avoid  it,  and  recover  virhat  he  has  paid,  or  for  'what  he 
has  done,  xrithout  returning  the  consideration,  if  he  has  it. 
But  it  is  otherwise,  by  the  weight  of  authority,  if  he  has 
squandered  or  otherw^ise  disposed  of  the  consideration  during 
his   minority.      Ho\Fever — 

EXCEPTIONS— (a)  Though  he  has  the  consideration,  he  may  ef- 
fectually disaffirm  his  executed  contract,  without  first  return- 
ing it,  if  he  does  not  seek  relief  from  the  courts,  as,  for  in- 
stance, \7here  he  disaffirms  his  conveyance  of  land  by  con- 
veying to  another. 

(b)  Some  courts  hold  that  an  infant  cannot  recover  what  he  has 
paid,  or  for  xirhat  he  has  done,  under  a  contract  by  w^hich  he 
has  received  a  substantial  benefit,  unless  he  can  and  does  place 
the  other  party  in  statu  quo.  This  probably  does  not  apply 
to  his   conveyances   of  land. 

Since  a  person  cannot  disaffirm  in  part  only  a  contract  made  by 
him  during  infancy,  but  must  disaffirm  in  toto,  if  at  all,  it  is  a  gen- 
eral rule  that,  on  disaffirming  a  contract,  the  party  must  return  the 
consideration   which   he   has   received.*'     Whether   or   not   he   must 


23  Hubbard  v.  Cummings,  1  Greenl.  (Me.)  11 ;  Uecker  v.  Koebn,  21  Neb.  559, 
32  N.  W.  583,  59  Am.  Rep.  849;  Bigelow  v.  Kinney,  3  Vt.  353,  21  Am.  Dee. 
589;  Heath  v.  West,  28  N.  H.  108;  Young  v.  McKee,  13  Mich.  556;  Skinner 
V.  Maxwell,  66  N.  C.  45;  Cogley  v.  Ousbman,  16  Minn.  402  (Gil.  354);  Callis 
V.  Day,  38  Wis.  643. 

2  4  Western  Union  Telegraph  Co.  v.  Greer,  115  Tenn.  368,  89  S.  W.  327,  1 
L.  R.  A.  (N.  S.)  525. 

2  5  Badger  v.  Pbinney,  15  Mass.  359,  8  Am.  E>ec.  105;  Bigelow  v.  Kinney, 
3  Vt.  353;  Wilbelm  v.  Hardman,  13  Md.  140;  Mustard  v.  Wohlford's  Heirs, 
15  Grat.  (Va.)  329,  76  Am.  Dec.  209 ;  Combs  v.  Hawes  (Cal.)  8  Pac.  597 ;  Kitchen 
V.  Lee,  11  Paige  (N.  Y.)  107,  42  Am.  Dee.  101;  Bartlett  v.  Oowles,  15  Gray 
(Mass.)  446. 

TTFF.P.&  D.REL.r2D  Ed.)— 27 


418  INFANTS.  .  (Ch.  14 

do  so  as  a  condition  precedent  to  disaffirmance,  or  whether  the  oth- 
er party  must  be  left  to  his  action  to  recover  the  consideration  aft- 
er disaffirmance,  and  whether  or  not  the  consideration  or  an  equiv- 
alent must  be  returned  where  it  has  been  wasted  or  otherwise  dis- 
posed of,  are  questions  upon  which  the  decisions  are  conflicting. 

As  has  already  been  seen,  if  a  person  who,  during  his  minority, 
has  received  the  consideration  for  his  contract,  has  the  considera- 
tion in  kind  when  he  attains  his  majority,  and  afterwards  disposes 
of  it,  either  by  consuming  it  himself,  or  by  selling  it,  or  otherwise 
putting  it  beyond  his  control,  or  if  he  retains  it  for  an  unreasonable 
time  without  seeking  to  avoid  the  contract,  he  thereby  ratifies  the 
contract;  and  this  applies  whether  the  contract  is  executed  or  exec- 
utory on  his  part.^* 

Where  the  contract  is  executory  on  the  part  of  the  infant,  and 
he  has  not  ratified  it  by  his  conduct,  it  cannot,  according  to  the 
weight  of  authority,  be  enforced  against  him,  even  though  he  has 
the  consideration  received  by  him  in  kind.  He  need  not  return  the 
consideration  as  a  condition  precedent  to  repudiating  the  contract, 
and  pleading  his  infancy  in  an  action  brought  against  him  to  enforce 
it.^^  When  he  repudiates  the  contract,  however,  he  no  longer  has 
any  right  to  the  consideration  he  has  received;  and,  if  he  still  has 
it,  the  other  party  may  maintain  an  action  to  recover  it.^*  By  the 
weight  of  authority,  if  he  has  wasted  or  otherwise  disposed  of  the  con- 
sideration during  his  minority,  so  that  he  cannot  return  it  in  kind,  he 
cannot  be  held  liable  for  it.  The  other  party  is  remediless.^®  It  must 
be  borne  in  mind  in  this  connection  that  retaining  the  consideration 
may  amount  to  ratification. 


26  Ante,  p.  411.  Of  course,  if  through  no  fault  on  his  part,  nor  conduct 
amounting  to  a  ratlflcation,  consideration  which  is  possessed  in  kind  on  at- 
taining his  majority  subsequently  becomes  incapable  of  return,  he  will  oc- 
cupy the  same  position  as  if  this  state  of  things  existed  when  he  attained  his 
majority. 

2  7  Craighead  v.  Wells,  21  Mo.  401);  Shipley  v.  Smith,  162  Ind.  526,  70  N.  E. 
803 ;  White  v.  Sikes,  129  Ga.  508,  59  S.  E.  228,  121  Am.  St  Rep.  228 ;  Price  v. 
Furman,  27  Vt  268,  65  Am.  Dec.  194;  Johnson  v.  Insurance  Co.,  56  Minn. 
365,  59  N.  W.  992,  26  L.  R.  A.  187,  45  Am.  St.  Rep.  473. 

28  Badger  v.  Phinney,  15  Mass.  359,  8  Am.  Dec.  105;  Mustard  v.  Wohlford's 
Heirs,  15  Grat  (Va.)  329,  76  Am.  Dec.  209. 

28  See  Brawner  v.  Franklin.  4  Gill  (Md.)  470;  Boody  v.  McKenney,  23  Me. 
517,  525 ;  post,  p.  419. 


'I 

I 


§§  214-215)  CONTRACTS  OF  INFANTS.  419 

When  the  contract  is  executed  on  the  part  of  the  infant,  and  he 
has  the  consideration  received  by  him  in  kind,  it  is  the  almost  uni- 
versal rule  that  he  cannot  repudiate  the  contract,  and  recover  what 
he  has  parted  with,  or  for  what  he  has  done,  unless  he  returns,  or 
offers  to  return,  the  consideration.^^  Some  cases  go  to  the  extent 
of  saying  without  qualification  that  the  return  of  the  consideration 
in  such  a  case  is  not  a  condition  precedent  to  the  right  to  disaffirm. 
This  is  so  where  the  disaffirmance  by  the  infant  is  by  dealing  with 
the  property  he  has  parted  with  as  his  own,  and  where  he  is  not 
seeking  the  aid  of  a  court  to  recover  it;  as  where,  having  sold  land 
and  received  the  purchase  money,  he  disaffirms  by  conveying  the  land 
to  another.  The  latter  deed  is  effectual  though  he  has  not  return- 
ed the  consideration  for  his  prior  deed.^^  But  an  infant  cannot  main- 
tain an  action  to  recover  what  he  has  parted  with,  or  for  what  he 
has  done,  without  returning  the  consideration,  if  he  has  it.^^ 

According  to  the  weight  of  authority,  an  infant,  on  attaining  his 
majority,  may  disaffirm  his  contract,  whether  it  is  executory  or  exe- 
cuted, and  in  the  latter  case  may  recover  back  what  he  has  parted  with, 
or  for  what  he  has  done,  without  returning,  or  offering  to  return, 

30  Price  v.  Furman,  27  Vt.  26S,  65  Am.  Dec.  194 ;  Blair  v.  Wliittaker,  31 
Ind.  App.  GG4,  69  N.  E.  182;  In  re  Huntenberg  (D.  C.)  153  Fed.  768;  Zucli  v. 
Turner  Harness  &  Carriage  Co.,  106  Mo.  App.  566,  SO  S.  W.  967;  Millsaps  v. 
Estes,  137  N.  C.  535,  50  S.  E.  227,  70  L.  R.  A.  170,  1U7  Am.  St.  liep.  496; 
Lemmon  v.  Beeman,  45  Ohio  St.  505,  15  N.  B.  476;  Dicl^erson  v.  Gordon,  52 
Hun,  614,  5  N.  Y.  Supp.  310;  Harvey  v.  Briggs,  68  Miss.  60,  8  South.  274,  10 
L.  R.  A.  62;  Chandler  v.  Simmons,  97  Mass.  508,  93  Am.  Dec.  117;  Carr  v. 
Clough,  26  N.  H.  280,  59  Am.  Dec.  .345 ;  Robinson  v.  Weeks,  56  Me.  102 ;  John- 
son V.  Insurance  Co.,  56  Minn.  365,  59  N.  W.  992,  2G  L.  R.  A.  187,  45  Am, 
St.  Rep.  473 ;  Towle  v.  Dresser,  73  Me.  252.  But  he  is  not  obliged  to  return 
consideration  when  he  cannot  return  in  kind.  International  Text  Book  Co. 
V.  Doran,  SO  Conn.  307,  68  Atl.  255.  To  the  same  effect,  see  Pennsylvania  Co. 
V.  Purvis,  128  III.  App.  367,  holding  that  the  acceptance  by  a  minor  of  a  rail- 
road pass  containing  an  exemption  from  liability  for  negligence  does  not 
operate  to  relieve  the  company  from  liability  for  an  injury  resulting  to  such 
minor  from  the  negligence  of  the  company.  An  actual  tender  is  not  required 
as  a  condition  precedent  when  it  is  known  in  advance  that  such  tender  will  be 
refused,  but  restoration  should  be  made  on  the  trial  as  a  condition  of  the 
judgment.     Starr  v.  Watkins  (Neb.)  Ill  N.  W.  363. 

31  Chandler  v.  Simmons,  97  Mass.  508,  93  Am.  Dec.  117;  Tucker  v.  More- 
land,  10  Pet.  58,  73,  9  L.  Ed.  345 ;  Dawson  v.  Helmes,  30  Minn.  107,  14  N.  W. 
462;  Shaw  v.  Boyd,  5  Serg.  &  R.  (Pa.)  309,  9  Am.  Dec.  368;  McCarty  v.  Iron 
Co.,  92  Ala.  463,  8  South.  417,  12  L.  R.  A.  136. 

3  2  Jones  V.  Valentine's  School  of  Telegraphy,  122  Wis.  318,  99  N.  W.  1043. 


420  INFANTS.  (Ch.  14 

the  consideration  received  by  him,  if,  during  his  minority,  he  has 
squandered  or  otherwise  disposed  of  it,  so  that  he  cannot  return  it.^' 
He  is  not  bound  to  return  an  equivalent.  Some  of  the  courts  extend 
this  rule  to  cases  in  which  the  infant  was  even  benefited  by  dispos- 
ing of  the  consideration.^*  The  principle  on  which  this  rule  is  bas- 
ed is  that  the  privilege  of  the  infant  to  avoid  his  contracts  is  intend- 
ed to  protect  him  against  the  improvidence  which  is  incident  to  his 
immaturity,  and  that  to  require  him  to  return  the  consideration  re- 

33  Gibson  v.  Soper,  6  Gray  (Mass.)  282,  66  Am.  Dec.  414;  Southern  Otton 
Oil  Co.  V.  Dukes,  121  Ga.  787,  49  S.  E.  788;  Wliite  v.  Sikes,  129  Ga.  508,  59 
S.  E.  228,  121  Am.  St.  Rep.  228;  Braucht  v.  Graves-May  Co.,  92  Minn.  116,  99 
N.  W.  417;  Beickler  v.  Gueuther,  121  Iowa,  419,  96  N.  W.  805;  Chandler 
v.  Simmons,  97  Mass.  508,  93  Am.  Dec.  117;  Morse  v.  Ely,  154  Mass.  458,  28 
N.  E.  577,  26  Am.  St.  Rep.  263;  Price  v.  Furman,  27  Vt.  268,  65  Am.  Dec.  194; 
Boody  V.  McKenney.  23  Me.  517 ;  Lemmon  v  Beeman,  45  Ohio  St.  505,  15  N. 
E.  476;  Reynolds  v.  McCurry,  100  111.  356;  Mustard  v.  Wohlford's  Heirs,  15 
Grat.  (Va.)  329,  76  Am.  Dec.  209 ;  Walsh  v.  Young,  110  Mass.  399;  Dawson  v. 
Helmes,  30  Minn.  107,  14  N.  W.  462;  Miller  v.  Smith,  26  Minn.  248,  2  N.  W. 
942,  37  Am.  Rep.  407 ;  Green  v.  Green,  69  N.  Y.  553,  25  Am.  Rep.  233 ;  Mordecai 
V.  Pearl,  63  Hun,  553,  18  N.  Y.  Supp.  543;  Petrie  v.  Williams,  68  Hun,  589, 
23  N.  Y.  Supp.  237 ;  Brawner  v.  Franklin,  4  Gill  (Md.)  463 ;  Brandon  v.  Brown, 
106  111.  519;  Craig  v.  Van  Bebber,  100  Mo.  584,  13  S.  W.  906,  18  Am.  St.  Rep. 
569;  Lacy  v.  Pixler,  120  Mo.  383,  25  S.  W.  206;  Shirk  v.  Shultz,  113  Ind.  571, 
15  N.  E.  12;  Harvey  v.  Briggs,  68  Miss.  60,  8  South.  274,  10  L.  R.  A.  62; 
Englebert  v.  Troxell,  40  Neb.  195,  58  N.  W.  852,  26  L.  R.  A.  177,  42  Am. 
St.  Rep.  665;  Manning  v.  Johnson,  26  Ala.  446,  62  Am.  Dec.  732.  It  was  said 
in  Price  v.  Furman,  27  Vt.  268,  65  Am.  Dec.  194:  "A  distinction  is  to  be 
observed  between  the  case  of  an  infant  in  possession  of  such  property  after 
age,  and  when  he  has  lost,  sold,  or  destroyed  the  property  during  his  minoritj-. 
In  the  former  case,  if  ho  has  put  the  property  out  of  his  power,  he  has  ratified 
the  contract,  and  rendered  it  obligatory  upon  him.  In  the  latter  case  the 
property  is  to  be  restored  if  it  be  in  his  possession  and  control.  If  the  prop- 
erty is  not  in  his  hands,  nor  under  his  control,  that  obligation  ceases.  To  say 
that  an  infant  cannot  recover  back  his  propei'ty  which  he  has  parted  with 
under  such  circumstances,  because,  by  his  indiscretion,  he  has  spent,  con- 
sumed, or  injured  that  which  he  received,  would  be  making  his  want  of  dis- 
cretion the  means  of  binding  him  to  all  his  improvident  contracts,  and  deprive 
him  of  that  protection  which  the  law  designed  to  secure  to  him." 

3  4  It  has  been  held  in  a  late  Massachusetts  case  that  a  minor  who  con-  j 

tracts  with  his  employer  that  the  price  of  articles,  not  necessaries,  purchased 
by  him  from  his  employer,  shall  be  deducted  from  his  wages,  may,  on  be- 
coming of  age,  repudiate  his  contract,  and  recover  his  wages  without  deduc- 
tion ;  and  this,  even  though  he  may  have  disposed  of  the  articles  to  his  bene- 
fit. Morse  v.  Ely,  154  Mass.  458,  28  N.  E.  577,  26  Am.  St.  Rep.  263.  And  see 
Genereux  v.  Sibley,  18  R.  I.  43,  25  Atl.  345. 


§§  214-215)  CONTRACTS  OF  INFANTS.  421 

ceived  and  squandered  or  otherwise  disposed  of  during  his  minori- 
ty would  be  to  withdraw  this  protection,  and  frustrate  the  object  of 
the  law.  This  rule  has  been  applied,  not  only  where  the  contract  was 
a  sale  and  conveyance  of  land  by  the  infant,  but  to  sales  of  person- 
alty and  other  contracts  as  well. 

Many  courts,  on  the  other  hand,  applying  the  principle  that  the 
privilege  of  an  infant  is  intended  as  a  shield,  and  not  as  a  sword — 
or,  in  other  words,  as  a  protection  to  the  infant,  and  not  as  an  in- 
strument of  fraud  and  injustice  to  others — hold  that  an  infant  can- 
not avoid  his  executed  contracts,  whereby  he  has  benefited,  and  re- 
cover what  he  has  parted  with,  or  for  what  he  has  done,  unless  he 
can  and  does  restore  the  consideration  he  has  received ;  and  that 
it  is  immaterial  that  the  consideration  has  been  disposed  of  by  him, 
or  for  any  other  reason  cannot  be  returned.  In  other  words,  they  hold 
that  an  infant  who  receives  a  substantial  consideration  for  his  exe- 
cuted contract  cannot,  on  attaining  his  majority,  avoid  the  contract, 
and  recover  what  he  has  parted  with,  unless  he  can  and  does  place 
the  other  party  in  statu  quo.^"* 

3  5  Holmes  v.  Blogg,  8  Taunt.  508  (but  see  Corpe  v.  Overton,  10  Bing.  252) ; 
Ex  parte  Taylor,  8  De  Gex,  M.  &  G.  254;  Valentin!  v.  Canali,  24  Q.  B.  Div. 
166 ;  Adams  v.  Beall,  67  Md.  53,  8  Atl.  664,  1  Am.  St.  Rep.  379 ;  Succession  of 
Sallier,  115  La.  97,  38  South.  929;  Breed  v.  Judd,  1  Gray  (Mass.)  455;  Wilhelm 
V.  Hardman,  13  Md.  140 ;  Holden  v.  Pike,  14  Vt.  405.  39  Am.  Dec.  228 ;  Heath 
V.  Stevens,  48  N.  H.  251;  Womack  v.  Womack,  8  Tex.  397,  417,  58  Am.  Dec. 
119;  Bailey  v.  Bamberger,  11  B.  Mon.  (Ky.)  113;  Locke  v.  Smith,  41  N.  H. 
346;  Johnson  v.  Insurance  Co.,  56  Minn.  365,  59  N.  W.  992,  26  L.  R.  A.  187, 
45  Am.  St,  Rep.  473.  When  the  infant  has  been  paid  in  money,  it  has  been 
held  that  the  tender  or  repayment  of  the  money  Is  not  a  condition  precedent 
to  the  right  to  rescind,  but  that  it  can  be  allowed  towards  the  infant's  claim. 
Heath  v.  Stevens,  48  N.  H.  251 ;  Sparman  v.  Keim,  83  N.  Y.  245.  In  Johnson 
V.  Insurance  Co.,  supra,  the  court  says:  "But  if  the  contract  was  free  from 
any  fraud  or  bad  faith,  and  otherwise  reasonable,  excepting  that  the  price 
paid  by  the  infant  was  in  excess  of  the  value  of  what  he  received,  his  recov- 
ry  should  be  limited  to  the  difference  between  what  he  paid  and  what  he 
received."  See,  also,  Medbury  v.  Watrous,  7  Hill  (N.  Y.)  110,  115 ;  Petrie  t 
Williams,  68  Hun,  589,  23  N.  Y.  Supp.  237. 


422  INFANTS.  (Ch.  14 


SAME— EFFECT  OF  RATIFICATION  OR  DISAFFIRMANCE. 

216.  Ratification  renders  the  contract  absolutely  binding  ab   initio. 

217.  Disaffirmance    renders    the    contract    absolutely    void    ab    initio. 

Third    parties,    therefore,    can    acquire    no    rights    under    an 
avoided  contract. 

The  effect  of  ratification  is  to  render  the  contract  binding  ab  ini- 
tio.'* The  new  promise  is  not  a  new  contract,  but  simply  a  ratifi- 
cation of  the  original  contract;  and  a  suit,  if  brought,  must  be  on 
the  original  contract,  and  not  on  the  new  promise.  The  ratification 
renders  the  contract  absolutely  binding."  It  cannot  be  retractec?.. 
and  the  contract  disaffirmed.^^ 

A  voidable  contract,  if  executed  by  the  infant,  vests  the  other  par- 
ty with  an  interest  subject  to  be  defeated  by  the  infant's  election  to 
rescind.  A  sale  and  conveyance  of  land,  for  instance,  or  a  sale  and 
delivery  of  chattels,  vest  the  purchaser  with  a  defeasible  title,  subject 
to  being  defeated  or  confirmed  by  the  infant.  The  purchaser  may 
therefore  deal  with  the  property,  until  disaffirmance,  by  sale  or  oth- 
erwise, and  it  is  important  to  ascertain  the  effect  which  a  disaffirm- 
ance will  have.  It  is  well  settled  that  disaffirmance  of  a  contract  re- 
lates back  to  the  date  of  the  contract,  and  renders  it  void  on  both 


8  6  Ward  V.  Anderson,  111  N.  C.  115,  15  S.  E.  933;  McCune  v.  Goodwillie, 
204  Mo.  306,  102  S.  W.  997;  Palmer  v.  Miller,  25  Barb,  (N.  Y.)  399;  Minock 
V.  Sliortridge,  21  Mich.  316 ;  Hall  v.  Jones,  21  Md.  439.  But  where  an  infant 
gave  a  deed,  and,  after  majority,  ratified  it,  and  gave  a  second  deed  to  one 
not  having  notice  of  the  ratification,  the  second  vendee  was  held  to  have  good 
title.  "While  it  is  true  that  the  title,  after  ratification,  is  held,  for  most  pur- 
poses, to  relate  back  to  the  original  deed,  yet  it  is  the  ratification  which  is 
the  effective  act,  and  which  rescues  the  deed  from  its  liability,  at  any  moment, 
to  be  made  a  nullity.  We  have  no  doubt  that,  if  the  ratification  is  by  means 
of  a  written  instrument,  it  is  within  the  policy  of  the  registry  laws.  It  is  the 
object  of  those  laws  to  disclose  to  all  the  world  the  exact  condition  of  a  title, 
and  written  instruments  relating  to  land  not  appearing  there  are  to  be  taken 
as  not  existing,  unless  the  knowledge  of  them  is  brought  home  in  some  other 
way.  If  the  ratification  is  by  acts  in  pais,  then  a  subsequent  purchaser  must 
be  affected  with  notice  of  those  acts."  Black  v.  Hills,  36  111.  376,  S7  Am.  Dec. 
224. 

8  7  Tillery  v.  Land,  136  N.  O.  537,  48  S.  E.  824,  holding  that  specific  per- 
formance of  a  contract  to  sell  real  estate  may  be  enforced  after  ratification. 

88  Hastings  v.  Dollarhide,  24  Cal.  195 ;  Luce  v.  Jestrab,  12  N.  D.  548,  97 
N.  W.  848.     See  Houlton  v.  Manteuffel,  51  Minn,  185,  53  N,  W.  541. 


§§    216-217)  CONTRACTS   OF   INFANTS.  423 

sides  ab  initio;  ^^  and  it  follows  that  the  rights  of  the  parties  must 
.be  determined  just  as  if  there  never  had  been  any  contract  between 
them.  One,  therefore,  who  has  occupied  land  under  a  conveyance 
by  an  infant,  which  is  avoided  by  him  on  attaining  his  majority,  is 
liable  for  use  and  occupation  during  the  time  of  his  occupation,  just 
as  he  would  be  if  there  had  been  no  conveyance.*"  If  the  infant's 
vendee  has  sold  the  land  to  some  third  person,  the  latter  occupies 
no  better  position  than  the  vendee,  and  the  property  may  be  recover- 
ed from  him,  even  though  he  was  a  purchaser  for  value,  and  without 
notice  of  the  defeasible  nature  of  the  title.*^ 

Since  an  infant  has  this  absolute  right  to  avoid  his  conveyances, 
the  disaffirmance  will  inure  to  the  benefit  of  any  person  who  may 
stand  in  the  infant's  shoes  by  virtue  of  a  subsequent  conveyance  of 
the  land.  Thus,  where  a  person,  who  has  conveyed  his  land  during  his 
minority,  executes  a  conveyance  to  another  person  on  attaining  his 
majority,  the  first  grantee  cannot  escape  the  effect  of  this  disaffirm- 
ance by  showing  that  the  second  grantee  knew  of  the  first  conveyance 
when  he  took  his.  As  was  said  by  the  Illinois  court:  "It  can  in  no 
just  sense  be  said  that  the  grantee  of  a  person  who  had  conveyed  dur- 
ing his  infancy  is  not  to  be  deemed  an  innocent  purchaser,  if  he  has 
notice  of  the  first  deed.  He  has  as  perfect  a  legal  right  to  purchase 
land  which  his  grantor  had  sold  during  minority  as  he  would  have 
to  purchase  land  that  had  never  been  conveyed  at  all.  The  moment 
the  second  deed  is  made,  the  deed  made  in  infancy  is  disaffirmed, 
and  becomes  void.  It  is  as  if  it  had  never  been.  This  right  of  dis- 
affirmance is  necessarily  given  by  the  law  to  prevent  great  frauds. 
Yet  the  right  would  be  practically  of  little  value  to  the  minor  if  the 
person  buying  of  him  after  he  becomes  of  age  is  to  be  considered  as 


3  0  Rice  V.  Boyer,  108  Ind.  472,  9  N.  E.  420,  58  Am.  Rep.  53;  Mustard  v. 
Wohlford's  Heirs,  15  Grat.  (Va.)  329,  76  Am.  Dec.  209;  Frencli  v.  McAndrew, 
61  Miss.  187;  Boyden  v.  Boyden,  9  Mete.  (Mass.)  519;  Badger  v.  Pbinney,  15 
Mass.  359,  8  Am.  Dec.  105 ;  Hoyt  v.  Wiliiinson,  57  Vt.  404 ;  Mette  v.  Feltgen 
<I11.)  27  N.  E.  911;  Id.,  148  111.  357,  36  N.  E.  81;  Derocher  v.  Contlneutal 
Mills,  58  Me.  217,  4  Am.  Rep.  2S6 ;  Vent  v.  Osgood,  19  Pick.  (Mass.)  572; 
Lufkin  V.  Mayall,  25  N.  H.  82. 

*o  French  v.  McAndrew,  61  Miss.  187. 

41  Hill  V.  Anderson,  5  Smedes  &  M.  (Miss.)  216;  Mustard  v.  Wohlford's 
Heirs,  15  Grat.  (Va.)  329,  76  Am.  Dec.  209;  Searcy  v.  Hunter,  81  Tex.  644,  17 
S.  W.  372,  26  Am.  St.  Rep.  837;  Downing  v.  Stone,  47  Mo.  App.  144;  Miles 
V.  Lingerman,  24  Ind.  385. 


424  INFANTS.  (Ch.  14 

incurring,  in  any  way,  the  censure  of  the  law,  and  to  be  therefore 
denied  the  position  of  an  innocent  purchaser."  *^ 

A  conveyance  by  an  infant  may  be  avoided,  not  only  as  against 
the  grantee,  but  also  as  against  creditors  of  the  grantee  *^  and  bona  fide 
purchasers  for  value  from  him.  In  like  manner,  personal  property  dis- 
posed of  by  an  infant  may  be  followed  into  the  hands  of  bona  fide 
purchasers.**  And  negotiable  instruments  executed  by  an  infant  may 
be  avoided  in  the  hands  of  bona  fide  holders  for  value.*"^ 

Where  services  have  been  rendered  by  an  infant  under  a  void- 
able contract,  and  he  has  received  nothing  under  it,  he  may,  on  dis- 
affirming the  contract,  recover  the  value  of  the  services  as  on  an  im- 
plied contract.*®  And  in  such  a  case  he  may,  according  to  the  bet- 
ter opinion,  recover  without  any  deduction  for  damages  caused  by 
his  failure  to  carry  out  the  cor'-ract,  for  to  allow  such  a  deduction 
would  be,  in  effect,  to  enforce  the  contract.*^  So,  also,  if  an  infant 
has  been  paid  money  or  parted  with  property  under  a  voidable  con- 
tract, and  has  himself  received  nothing,  he  may  recover  what  he  has 
parted  with  on  avoiding  the  contract.*^  Even  where  he  has  receiv- 
ed something  under  the  contract,  he  may  return  it,  and  recover  what 
he  has  parted  with ;    and,  as  has  been  seen,  according  to  the  weight 

42  Black  V.  Hills,  36  111.  376,  87  Am.  Dec.  224. 

48  Seed  V.  Jennings,  47  Or.  464,  83  Pac.  872; 

4  4  Downing  v.  Stone,  47  Mo.  App.  144;  Hill  v.  Anderson,  5  Smedes  &  M. 
(Miss.)  216. 

4  6  Seeley  v.  Seeley-Howe-Le  Van  Co.,  128  Iowa,  294,  103  N.  W.  961. 

4  6  Medbury  v.  Watrous,  7  Hill  (N.  Y.)  110;  Gaffney  v.  Hayden,  110  Mass. 
137,  14  Am.  Rep.  580;  Price  v.  Furman,  27  Vt.  268,  65  Am.  Dec.  194;  Whit- 
marsh  V.  Hall,  3  Deuio  (N.  Y.)  375 ;  Vent  v.  Osgood,  19  Pick.  (Mass.)  572 ;  Ray 
V.  Haines,  52  111,  485;  Dallas  v.  Holliugsworth,  3  Ind.  537;  Judkins  v.  Walker, 
17  Me.  38.  35  Am.  Dec.  229;  Dorocber  v.  Continental  Mills.  58  Me.  217,  4  Am. 
Rep.  286 ;  Lufkin  v.  Mayall,  25  N.  H.  82.    See  Clark,  Cont.  259. 

47  Derocber  v.  Continental  Mills,  58  Me.  217,  4  Am.  Rep.  286 ;  Whitmarsb 
V.  Hall,  3  Denio  (N.  Y.)  375.  But  see  Moses  v.  Stevens,  2  Pick.  (Mass.)  332; 
Thomas  v.  Dike,  11  Vt.  273,  34  Am.  Dec.  690.  But  the  master  may  show 
any  facts  which  aCfect  the  value  of  the  infant's  services,  such  as  lack  of  skill, 
or  negligence  or  disol>edieuce  of  orders,  or  injury  resulting  therefrom,  Vehue 
■V.  Piukham,  60  Me.  142 ;  and  will  be  credited  with  payments  made  under 
the  contract,  Hagerty  v.  Lock  Co.,  62  N.  H.  576;  or  with  the  value  of  neces- 
saries furnished  the  infant,  Meredith  v.  Crawford,  34  Ind.  399. 

4  8  Stafford  v.  Roof,  9  Cow.  (N.  Y.)  626;  Corpe  v.  Overton,  10  Bing.  252; 
Millard  v.  Hewlett,  19  Wend.  (N.  Y.)  301;  ShurtlefC  v.  Millard,  12  R.  I.  272, 
34  Am.   Rep.  640. 


§    218)  REMOVAL   OF    DISABILITIES.  425 

of  authority,  he  may  so  recover  without  returning  what  he  has  re- 
ceived, if  he  has  lost,  wasted,  or  used  it  during  his  minority,  so  that 
he  cannot  return  it.  A  disaffirmance  cannot  be  retracted.  A  ratifi- 
cation after  a  disaffirmance  comes  too  late.*" 


REMOVAIi    OF   DISABILITIES. 

218.  The  emancipation  of  an  infant  by  act  of  the  parent  or  hy  mar- 
riage, while  removing  some  of  the  disabilities  of  infancy,  does 
not  enlarge  the  capacity  to  contract.  In  some  states,  ho-w- 
ever,  the  disabilities  of  infancy  may  be  removed  by  judicial 
proceedings. 

An  infant  may  be  emancipated  by  the  act  of  his  parent  or  by  mar- 
riage ;  °°  and,  while  emancipation  will  to  some  extent  remove  the 
disabilities  of  infancy, °^  it  does  not  enlarge  or  affect  his  capacity  to 
contract,"*  or  his  capacity  to  sue  without  a  next  friend  or  guard- 
ian,"* or  give  him  political  rights  not  belonging  to  infants  general- 
ly."* Even  statutes  which  confer  on  married  women  the  power  to 
contract  generally,  and  to  convey  their  separate  real  estate  with  or 
without  the  consent  of  their  husbands,  do  not  operate  to  remove  the 
disability  of  infancy,  but  only  that  of  coverture."" 

In  some  states,  however,  provision  is  made  by  statute  for  the  re- 


4  9  McCarty  v.  Woodstock  Iron  Co.,  92  Ala.  463,  8  South.  417,  12  L.  R.  A.  136. 
CO  Ante,  p.  280. 

Bi  Inhabitants  of  Bucksport  v.  Inhabitants  of  Rockland,  56  Me.  22;  Person 
V.  Chase,  37  Vt.  647,  88  Am.  Dec.  630 ;  Inhabitants  of  Taunton  v.  Inhabitants 
of  Plymouth,  15  Mass.  203 ;  Trammell  v.  Trammell,  20  Tex.  406 ;  Grayson  v. 
Lofland,  21  Tex.  Civ.  App.  503,  52  S.  W.  121;  Lawder  v.  Larkin  (Tex.  Civ. 
App.)  94  S.  W.  171;  Robinson  v.  Hathaway,  150  Ind.  G79,  50  N.  E.  SS3  ;  Ward 
V.  Laverty,  19  Neb.  429,  27  N.  W.  393;  Hoskins  v.  White,  13  Mont.  70,  32  Pae. 
163.     And  see  Geuereux  v.  Sibley,  18  R    I.  43,  25  Atl.  345. 

5  2  Mason  v.  Wright,  13  Mete.  (Mass.)  306;  Inhabitants  of  Taunton  v.  In- 
habitants of  Plymouth,  15  Mass.  203;  Tyler  v.  Gallop's  Estate,  68  Mich.  185, 
35  N.  W.  902,  13  Am.  St.  Rep.  336 ;  Geuereux  v.  Sibley,  18  R.  I.  43,  25  Ati.  345 ; 
Person  v.  Chase,  37  Vt.  647,  88  Am.  Dec.  630;  Hoskins  v.  White,  13  Mont. 
70,  32  Pac.  103.    Except  as  to  necessaries,  Chapman  v.  Hughes,  61  Miss.  339. 

6  3  Hoskins  v.  White,  13  Mont.  70,  32  Pac.  163. 

6*  Inhabitants  of  Taunton  v.  Inhabitants  of  Plymouth,  15  Mass.  203. 
65  Shipley  v.   Smith,  162  Ind.  526,  70  N.  E    S03 ;  Burr  v.  Wilsou,   18  Tex 
367.    But  see  Ward  v.  Laverty,  19  Neb.  429,  27  N.  W.  393. 


426  INFANTS.  (Ch.  14 

moval  of  the  disabilities  of  infancy  by  judicial  proceedings;"  the 
power  being  usually  vested  in  courts  of  chancery  "'^  or  of  probate."' 
On  a  proper  showing  of  the  infant's  ability  to  manage  his  own  af- 
fairs,"^®  the  court  may  in  its  discretion  enter  an  order  or  decree  eman- 
cipating the  infant  and  removing  his  disabilities.""  The  effect  of 
the  order  or  decree  is  to  invest  the  infant  with  all  the  powers  and 
capacities,  and  to  subject  him  to  all  the  liabilities,  he  would  have  or 
be  subject  to  if  he  had  actually  attained  his  majority.'*' 


ACTIONS   IN   TORT   BY   INFANTS. 

219.  An  infant  lias   the   same  right  as   an  adnlt  to  sne  for  tortions 

injuries.  Snch  actions  are  governed  by  the  ordinary  rules  of 
law,  and,  if  the  infant  fails  to  exercise  due  care,  his  con- 
tributory negligence  may  bar  his  right  of  recovery. 

220.  The  due  care  required  by  law,  being  due  care  under  the  circum- 

stances  of  the   case— 

(a)  A  less  degree  of  care  will  ordinarily  be  required  of  an  infant 

than  of  an  adult,  and  accordingly— 

(1)  An  infant  too  young  to  be  capable  of  exercising  due  care 

is  held,  as  a  matter  of  law,  incapable  of  contributory  neg- 
ligence. 
EXCEPTION — In  some  jurisdictions  the  negligence  of  the  parent 
or  guardian  w^ill  be  imputed  to  the  child. 

(2)  In  general,  only  such  care  xrill  be  required  of  an  infant  as 

is    due   care  in  one  of  his  years  and  experience. 

(b)  A  greater  degree  of  care  is  required  of  an  adult  in  dealing  with 

an  infant  than  "with  an  adult. 


BoBoykin  v.  Collins,  140  Ala.  407,  37  South.  248;  Young  v.  Hiner,  72  Ark. 
209,  79  S.  W.  10G2;  Doles  v.  Hilton,  48  Ark.  305,  3  S.  W.  193;  Marks  v,  Mc- 
Elroy,  67  Miss.  545,  7  South.  408. 

BT  Boykin  v.  Collins,  140  Ala.  407,  37  South.  248;  Young  v.  Hiner,  72  Ark. 
299,  79  S.  W.  1062;  Marks  v.  McElroy,  67  Miss.  545,  7  South.  40a 

6  8  Doles  V.  Hilton,  48  Ark.  305,  3  S.  W.  193. 

6»  In  re  Pochelu's  Emancipation,  41  La.  Ann.  331,  6  South.  541;  Doles  v. 
Hilton,  48  Ark.  305,  3  S.  W.  193;  Young  v.  Hiner,  72  Ark.  299,  79  S.  W. 
1062;  Brown  v.  Wheelock,  75  Tex.  385,  12  S.  W.  Ill,  841. 

6  0  Boykin  v.  Collins,  140  Ala.  407,  37  South.  248;  Doles  v.  Hilton,  48  Ark. 
305,  3  S.  W.  193 ;  Brown  v.  Wheelock,  75  Tex.  385,  12  S.  W.  Ill,  841. 

61  Young  V.  Hiner,  72  Ark.  299,  79  S.  W.  1062;  Succession  of  Gaines,  42 
La.  Ann.  699,  7  South.  788.     But  the  decree  or  order  has  no  extraterritorial 


§§   219-220)  ACTIONS   IN   TORT   BT   INFANTS.  427 

(o)  An  adult  ■virh.o  places  a  dangerous  agency,  TrMcli,  from  its  na- 
ture, is  attractive  to  children,  x^liere  it  is  accessible  to  ttem, 
may  be  liable  £or  injuries  caused  thereby,  though,  the  children 
are  trespassers. 

In  the  case  of  an  injury  to  the  person  of  an  infant  by  the  tortious 
act  of  another,  two  causes  of  action  may  arise — one,  as  has  been 
seen,  in  favor  of  the  parent  for  loss  of  services ;  '*  and  one  in  favor 
of  the  infant  for  the  injury  to  his  person.''  In  actions  by  the  in- 
fant the  ordinary  rules  of  law  governing  the  question  of  negligence 
apply,  except  in  so  far  as  they  must  necessarily  be  modified  to  meet 
the  changed  conditions  arising  from  the  infant's  want  of  discretion 
and  experience.  A  child  of  very  tender  years  has  been  held,  as  a 
matter  of  law,  incapable  of  contributory  negligence ;  **  and,  in  gen- 
eral, a  less  degree  of  care  is  required  of  an  infant  than  of  an  adult. 
The  degree  required  depends  on  his  age  and  knowledge,  and  is  such 
as  would  be  ordinary  care  in  one  of  his  years  and  experience,  under 
the  same  circumstances.®" 


effect,  State  v.  Bunce,  65  Mo.  349;  Wilkinson  v.  Buster,  124  Ala.  574,  26 
South.  940;  and  does  not  affect  contracts  executed  in  other  jurisdictions. 

6  2  Ante,  p.  286. 

63  Georgia  Pac.  Ry.  Co.  v.  Propst,  83  Ala.  518,  3  South.  764;  Hartheld  v. 
Roper,  21  Wend.  (N.  Y.)  615,  34  Am.  Dec.  273.  But  in  an  action  by  a  minor 
for  damages  for  injury  to  his  person  he  cannot  recover  for  loss  of  time,  since 
his  services  belonged  to  his  father.  Burke  v.  Ellis,  105  Tenn.  702,  58  S.  W\ 
855.  He  may  maintain  an  action  for  other  torts  such  as  slander.  Stewart 
V.  Howe,  17  111.  71 ;  Hurst  v.  Goodwin,  114  Ga.  585,  40  S.  E.  764,  88  Am.  St. 
Rep.  43. 

6  4  Fink  v.  Furnace  Co.,  10  Mo.  App.  61;  American  Tobacco  Co.  v.  Polisco, 
104  Va.  777,  52  S.  E.  563;  Erie  City  Pass.  Ry.  Co.  v.  Schuster,  113  Pa.  412, 
6  Atl.  269,  57  Am.  Rep.  471 ;  Hartfield  v.  Roper,  21  Wend.  (N.  Y.)  615,  34  Am. 
Dec.  273;  Mangam  v.  Railroad  Co.,  38  N.  Y.  455,  98  Am.  Dec.  OG;  Schmidt 
V.  Railway  Co.,  23  Wis.  186,  99  Am.  Dec.  158;  Toledo,  W.  &  W.  Ry.  Co.  v. 
Grable,  88  111.  441;  Morgan  v.  Bridge  Co.,  5  Dill.  96,  Fed.  Cas.  No.  9,802; 
Bay  Shore  R.  Co.  v.  Harris,  67  Ala.  6. 

65  Sioux  City  &  P.  R.  Co.  v.  Stout,  17  Wall.  657,  21  L.  Ed.  745 ;  Union 
Pac.  R.  Co.  V.  McDonald,  152  U.  S.  262,  14  Sup.  Ct.  619,  38  L.  Ed.  434 ;  Byrne 
v.  Railroad  Co.,  83  N.  Y.  620;  Lynch  v.  Smith,  104  Mass.  52,  6  Am.  Rep.  188; 
Dowling  v.  Allen,  88  Mo.  293;  Chicago  &  A.  R.  Co.  v.  Becker,  76  111.  25;  Evau- 
sich  V.  Railway  Co.,  57  Tex.  126,  44  Am.  Rep.  586;  Huff  v.  Ames,  16  Neb. 
139,  19  N.  W.  623,  49  Am.  Rep.  716 ;  Lynch  v.  Nurdin,  1  Q.  B.  29 ;  Fishburn 
V.  Burlington  &  N.  W.  Ry.  Co.,  127  Iowa,  483,  103  N.  W.  481;  Slatteiy  v. 
Lawrence  Ice  Co.,  190  Mass.  79,  76  N.  E.  459. 


428 


INFANTS. 


(Ch.l4 


On  the  other  hand,  an  adult  will  be  held  to  a  higher  degree  of  care 
in  dealing  with  an  infant  than  with  one  of  mature  age  and  under- 
standing.^'  To  the  general  rule,  that  one  injured  while  trespassing 
or  guilty  of  contributory  negligence  has  no  right  of  action  for  the  in- 
jury, there  is  an  exception  in  favor  of  children  in  case  they  are  in- 
jured by  dangerous  agencies  which  are  in  their  nature  likely  to  be 
tempting  to  them,  and  which  are  left  where  they  are  accessible.  The 
theory  on  which  these  cases  proceed  is  that  the  temptation  of  an  at- 
tractive plaything  to  a  child  is  a  thing  which  must  be  expected  and 
guarded  against,  and  that  the  placing  of  such  objects  where  they  are 
accessible  to  children  is  an  implied  invitation  to  them.®^  When  a 
child  is  too  young  to  be  capable  of  exercising  care,  it  is  held  in  some 
jurisdictions  that  contributory  negligence  on  the  part  of  his  parent 


66  Carter  v.  Towne,  98  Mass.  567,  96  Am.  Dec.  682;  Binford  v.  Johnston. 
82  Ind.  426,  42  Am.  Rep.  508;  Bransom's  Adm'r  v.  Labrot,  81  Ky.  638,  50 
Am.  Rep.  193. 

6  7  An  owner  has  been  held  liable,  on  this  principle,  for  injury  to  a  child  caus- 
ed by  the  caving  in  of  a  sandpit,  attractive  to  and  frequented  by  children, 
Fink  V.  Furnace  Co.,  10  Mo.  App.  61  (contra,  Katte  v.  Dawson,  50  Minn. 
450,  52  N.  W.  965) ;  for  leaving  dangerous  explosives  accessible  to  children, 
as  a  single  torpedo  unguarded  on  a  railway  track,  Harriman  v.  Railway  Co., 
45  Ohio  St.  11,  12  N.  E.  451,  4  Am.  St.  Rep.  507;  and  dynamite  in  an  open 
shed,  near  where  children  were  in  the  habit  of  playing.  Powers  v.  Harlow, 
53  Mich.  507,  19  N.  W.  257,  51  Am.  Rep.  154.  In  this  case  the  court  said:  "If 
they  leave  exposed  to  the  observation  of  children  anything  which  would  be 
tempting  to  them,  and  which  they  in  their  immature  judgment  might  natural- 
ly suppose  that  they  were  at  liberty  to  handle  or  play  with,  they  should  ex- 
pect that  liberty  to  be  taken."  On  the  same  principle,  railroads  have  been 
held  liable  for  injuries  caused  to  children  from  playing  on  turntables.  Sioux 
City  &  P.  R,  Co.  V.  Stout,  17  Wall.  657,  21  L.  Ed.  745;  Keffe  v.  Railway  Co., 
21  Minn.  211,  18  Am.  Rep.  393.  In  the  last  case  the  court  said:  "Now,  what 
an  express  invitation  would  be  to  an  adult,  the  temptation  of  an  attractive 
plaything  is  to  a  child  of  tender  years.  If  the  defendant  had  left  this  turn- 
table unfastened  for  the  purjiose  of  attracting  young  children  to  play  upon 
it,  knowing  the  danger  into  which  it  was  thus  alluring  them,  it  certainly 
would  be  no  defense  to  an  action  by  the  plaintiff,  who  had  been  attracted 
upon  the  turntable  and  injured,  to  say  that  the  plaintiff  was  a  trespasser, 
and  that  his  childish  instincts  were  no  excuse  for  his  trespass."  See,  also, 
Xagel  V.  Railway  Co.,  75  Mo.  653,  42  Am.  Rep.  418;  Evansich  v.  Railway 
Co.,  57  Tex.  126,  44  Am.  Rep.  586;  Kansas  Cent.  Ry.  Co.  v.  Fitzsiramons.  22 
Kan.  680,  31  Am.  Rep.  203;  Union  Pac.  R.  Co.  v.  McDonald,  152  U.  S.  262, 
14  Sup.  Ct.  019,  38  L.  i:d.  434. 


i 


§§   219-220)  ACTIONS   IN   TORT    BY    INFANTS.  429 

or  guardian  will  prevent  recovery  by  the  child.**     By  the  weight  of 
authority,  however,  this  rule  is  expressly  repudiated.** 

«8  This  doctrine  was  first  laid  down  in  Hartfield  v.  Roper,  21  Wend.  (N. 
Y.)  615,  34  Am.  Dec.  273,  Cowen,  J.,  said:  "It  is  perfectly  well  settled  that, 
if  the  party  injured  by  a  collision  on  the  highway  has  drawn  the  mischief 
upon  himself  by  his  own  neglect,  he  is  not  entitled  to  an  action,  even  though 
he  be  lawfully  in  the  highway  pursuing  his  travels,  which  can  scarcely  be 
said  of  a  toppling  infant,  suffered  by  his  guardians  to  be  there,  either  as 
a  traveler,  or  for  the  purpose  of  pursuing  his  sports.  The  application  may  be 
harsh  when  made  to  small  children.  As  they  are  known  to  have  no  personal 
discretion,  common  humanity  is  alive  to  their  protection;  but  they  are  not, 
therefore,  exempt  from  the  legal  rule,  when  they  bring  an  action  for  redress, 
and  there  is  no  other  way  of  enforcing  it  except  by  requiring  due  care  at 
the  hands  of  those  to  whom  the  law  and  the  necessity  of  the  case  has  dele- 
gated the  exercise  of  discretion.  An  infant  is  not  sui  juris.  He  belongs  to 
another,  to  whom  discretion  in  the  care  of  his  person  is  exclusively  confided. 
That  person  is  keeper  and  agent  for  this  purpose;  and,  in  respect  to  third 
persons,  his  act  must  be  deemed  that  of  the  infant;  his  neglect,  the  infant's 
neglect."  And  see  Holly  v.  Gaslight  Co.,  8  Gray  (Mass.)  123,  69  Am.  Dec. 
233 ;  Leslie  v.  Lewiston,  62  Me.  468 ;  Evansville  &  C.  R.  Co.  v.  Wolf,  59  Ind. 
89;  Schmidt  v.  Railway  Co.,  23  Wis.  186,  99  Am.  Dec.  158;  Toledo,  W.  &  W. 
Ry.  Co.  V  Grable,  88  111.  441;  Meeks  v.  Railroad  Co.,  52  Cal.  G02;  Baltimore 
&  O.  R.  Co.  V.  State,  30  Md.  47;  Hathaway  v.  Toledo,  W.  &  W.  Ry.  Co.,  46 
Ind.  25 ;  Weil  v.  Dry  Dock,  E.  B.  &  B.  R.  Co.,  119  N.  Y.  147,  23  N.  E.  487. 

6  8  Robinson  v.  Cone,  22  Vt.  213,  54  Am.  Dec.  67.  In  this  case  the  court 
said:  "Here  the  jury  have  found  that  the  plaintiff  was  properly  suffered 
by  his  parents  to  attend  school  at  the  age  and  in  the  manner  he  did,  and 
that  injury  happened  through  the  ordinary  neglect  of  the  defendant,  or,  if 
not  properly  suffered  to  go  to  school,  then  that  the  defendant  was  guilty  of 
gross  neglect;  for  the  judge  put  the  case  in  the  alternative  to  the  jury,  and 
they  have  found  a  general  verdict  for  the  plaintiff.  And  Ave  are  satisfied  that 
although  a  child  or  idiot  or  lunatic  may,  to  some  extent,  have  escaped  into 
the  highway  through  the  fault  or  negligence  of  his  keeper,  and  so  be  im- 
properly there,  yet  if  he  is  hurt  by  the  negligence  of  the  defendant,  he  is  not 
precluded  from  his  redress."  And  see  Daley  v.  Railroad  Co.,  26  Conn.  591, 
68  Am.  Dec.  413 ;  Erie  City  Pass.  Ry.  Co.  v.  Schuster,  113  Pa.  412,  6  Atl.  269, 
57  Am.  Rep.  471;  Bellefontaine  &  I.  R.  Co.  v.  Snyder,  18  Ohio  St.  399,  98 
Am.  Dec.  175 ;  Government  St.  R.  Co.  v.  Ilanlon,  53  Ala.  70 ;  Whirley  v.  White- 
man,  1  Head  (Tenn.)  610;  Huff  v.  Ames,  16  Neb.  139,  19  N.  W.  623.  49  Am. 
Rep.  716 ;  Mattson  v.  Minnesota  &  N.  W.  R.  Co.,  95  Minn.  477,  104  N.  W.  443, 
70  L.  R.  A.  503,  111  Am.  St.  Rep.  483,  overruling  Fitzgerald  v.  St.  Paul,  M. 
&  M.  Ry.  Co.,  29  Minn.  336,  13  N.  W.  168.  43  Am.  Rep.  212;  Wilmot  v.  Me- 
Padden,  78  Conn.  276,  61  Atl.  1069;  Boehm  v.  City  of  Detroit,  141  Mich. 
277,  104  N.  W.  626;  Jacksonville  Electric  Co.  v.  Adams,  50  Fla.  429,  39 
South.  183;  Chicago  City  Ry.  Co.  v.  Wilcox,  138  111.  370,  27  N.  E.  899, 
21  L.  R.  A.  76;  Walters  v.  Chicago,  R.  I.  &  P.  R.  Co.,  41  Iowa,   71;  Bat 


430  INFANTS.  (Ch.  14 


LIABILITY    OF   INFANTS   FOR   TORTS. 

221.  An  infant  must  answer  for  his  torts   as  fully  as   an  adult,  an<l 

the  fact  that  the  tort  is  committed  under  authority  or  com- 
mand of  his  parent  is  no  defense. 

222.  Since  an  infant  is  not  bound  by  his  contract,  except  in  certain 

cases,  a  breach  of  contract,  except  in  those  cases,  cannot  be 
treated  as  a  tort,  so  as  to  mahe  him  liable.  The  tort  must 
be   separate   and   independent  of  it. 

Infancy  is  no  defense  for  a  tort  committed  by  a  minor.  He  is 
liable  for  injuries  caused  to  the  person  or  property  of  another  as 
fully  as  is  an  adult.  Thus,  an  action  in  tort  will  lie  against  an  infant 
for  an  injury  caused  by  his  negligence;^"  for  conversion,'^ ^  tres- 
pass/^ assault,^^  or  slander.^*     "The  law  with  respect  to  liability  of 

tishill  V.  Humphreys,  64  Mich.  494,  31  N.  W.  894;  Boland  v.  Missouri  R. 
Ck).,  36  Mo.  484;  Winters  v.  Kansas  City  Cable  Ry.  Co.,  99  Mo.  509,  12  S. 
W.  652,  6  L.  R.  A.  536,  17  Am.  St.  Rep.  591.  The  Missouri  cases  are,  however, 
somewhat  conflicting.  There  is  also  some  doubt  as  to  the  rule  in  Kansas, 
Maryland,  and  Wisconsin.  Smith  v.  Atchison,  T.  &  S.  F.  R.  Co.,  25  Kan. 
742;  McMahon  v.  Northern  Cent.  R.  R.  Co.,  39  Md.  439;  Ewen  v.  Chicago  & 
N.  W.  Ry.  Co.,  38  Wis.  613;  Hoppe  v.  Chicago,  M.  &  St.  P.  Ry.  Co.,  61  Wis. 
357.  21   N.  W.  227. 

70  Jag.  Torts,  159,  and  cases  there  cited;  Bac.  Abr.  "Infancy  and  Age," 
H;  School  Dist.  No.  1  v.  Bragdon,  23  N.  H.  507;  Conklin  v.  Thompson,  29 
Barb.  (N.  Y.)  218 ;  Bullock  v.  Babcock,  3  Wend.  (N.  Y.)  391 ;  Peterson  v.  Haff- 
ner,  59  Ind.  130,  26  Am.  Rep.  81;  Conway  v.  Reed.  66  Mo.  346,  27  Am.  Rep. 
354;  Huchting  v.  Engel,  17  Wis.  230,  84  Am.  Dec.  741.  On  the  question  of 
negligence,  the  jury  has  a  right  to  take  into  consideration  the  childhood  of 
the  parties.  Harvey  v.  Dunlop,  Lalor's  Supp.  (N.  Y.)  193  In  Bullock  v. 
Babcock,  supra,  it  was  said:  "Where  infants  are  the  actors,  that  might 
probably  be  considered  an  unavoidable  accident  which  would  not  be  so  con- 
sidered where  the  actors  are  adults."  Where  defendants  were  13  and  16,  it 
was  held  that  their  youth  was  not  to  be  taken  into  consideration  on  the  ques- 
tion of  negligence.    Neal  v.  Gillett,  23  Conn.  437. 

71  Jag.  Torts,  159;  Mills  v.  Graham,  1  Bos.  &  P.  140;  Vasse  v.  Smith;  6 
Cranch,  226,  3  L.  Ed.  207;  Walker  v.  Davis,  1  Gray  (Mass.)  506;  Baxter  7 
Bush,  29  Vt.  465,  70  Am,  Dec.  429;  Fitts  v.  Hall,  9  N.  H.  441;  Lewis  v 
Littlefield,  15  Me.  235. 

7  2  Campbell  v.  Stakes,  2  Wend.  (N.  Y.)  137,  19  Am.  Dec.  561;  O'Leary  r. 
Brooks  Elevator  Co.,  7  N.  D.  554,  75  N.  W.  919,  41  L.  R.  A.  677;  Jag.  Torts. 
159. 

73  Watson  V.  Wrightsman,  26  Ind.  App.  437,  59  N.  E.  1064. 

74  Defries  v.  Davis,  1  Bing.  N.  C.  692 ;  Fears  v.  Riley,  148  Mo.  40,  49  S.  W. 
836;  Jag.  Torts,  159. 


§§    221-222)  LIABILITY    OF   INFANTS    FOR   TORTS.  431 

infants  has  proceeded  rather  on  the  theory  of  compensating  the  in- 
jured party  than  of  consistently  maintaining  any  logical  doctrine  as 
to  the  mental  attitude  of  the  wrongdoer,  and  of  basing  the  respon- 
sibility on  the  wrongful  intention  or  inadvertence.  The  cases  pro- 
ceed on  the  propriety  of  holding  all  persons  liable  for  actual  dam- 
ages committed  by  them,  and  of  ignoring  volition  as  a  necessary  ele- 
ment of  a  juridical  cause."  ''^  As  was  said  by  Lord  Kenyon  in  a 
leading  English  case :  "If  an  infant  commit  an  assault,  or  utter  slan- 
der, God  forbid  that  he  should  not  be  answerable  for  it  in  a  court 
of  justice."  ^«  The  fact  that  a  tort  is  committed  by  an  infant  un- 
der authority  or  command  of  his  parent  may  render  the  parent  al- 
so liable,  but  it  will  not  excuse  the  infant.''^ 

Infants  cannot  empower  an  agent  or  attorney  to  act  for  them, 
nor,  by  the  weight  of  authority,  afifirm  what  another  may  have  as- 
sumed to  do  on  their  account;  and  therefore  they  are  not  liable  for 
torts  alleged  to  have  been  committed  by  their  agent.  They  cannot 
be  held  liable  for  "torts  by  a  prior  or  subsequent  assent,  but  only  for 
their  own  act."  ^* 

There  are  cases  in  which  tenderness  of  age  may  be  available  as 
a  defense.  "In  certain  classes  of  cases,  the  inability  of  very  young 
infants  to  be  intelligent  actors,  and  therefore  their  inability  to  ju- 
dicially cause  a  wrong,  has  been  recognized.  In  such  cases  the  wrong 
is  considered  due  to  unavoidable  accident.'^*  And,  where  malice 
is  a  necessary  element,  an  infant  may  or  may  not  be  liable,  accord- 
ing as  his  age  and  capacity  may  justify  imputing  malice  to  him,  or 
may  preclude  the  idea  of  his  indulging  it."  ^^ 

Tort  or  Contract. 

While  an  infant  is  liable  for  his  torts,  yet  if  the  tort  arises  from 
a  breach  of  contract,  and  is  not  separate  from  and  independent  of 


7  5  Jag.  Torts,  159,  where  the  subject  is  discussed,  and  numerous  cases  col- 
lected. 

7  6  Jennings  v.  Rundall,  8  Term  R.  335. 

77  Scott  V.  Watson,  4G  Me.  302,  74  Am.  Dec.  457;  O'Leary  v.  BroolvS  Elevator 
Co.,  7  N.  D.  554,  75  N.  W.  910,  41  L.  R.  A.  G77;  Humphrey  v.  Douglass,  10 
Vt.  71,  33  Am.  Dec.  177;  Smith  v.  Kron,  9G  N.  C.  392,  2  S.  E.  533 ;  Wilson 
V.  Garrard,  59  111.  51 ;  Jag.  Torts,  IGO. 

7  8  Jag.  Torts,  IGO;  Burnham  v.  Seaverns,  101  Mass.  3G0,  100  Am.  Dec.  123; 
Cimningham  v.  Railway  Co.,  77  111.  178. 

79  Bullock  V.  Babcock,  3  Wend.  (N.  Y.)  391;  Jag.  Torts,  IGO;  Ames  &  S. 
Cas.  Torts,  30 ;  Whart.  Neg.  §  88;  note  218,  supra. 

80  Jag.  Torts,  160;  Cooley,  Torts  (2d  Ed.)  120;  Johnson  v.  Pye,  1  Sid.  258. 


432  INFANTS.  (Ch.  14 

the  contract,  he  cannot  be  deprived  of  his  defense  of  infancy,  by 
the  plaintiff's  merely  changing  the  form  of  action,  and  suing  in  tort.^^ 
If  however,  the  tort,  though  in  a  sense  connected  with  the  contract, 
is  not  a  mere  breach  of  it,  but  a  distinct  wrong  of  itself,  the  infant 
is  liable.^*  Where  an  infant  hired  a  horse  to  ride,  and  injured  it 
by  overriding,  it  was  held  that  he  could  not  be  made  liable  upon 
the  contract  by  framing  the  action  in  tort  for  negligence.®'  Where, 
on  the  other  hand,  an  infant  hired  a  horse  expressly  for  riding,  and 
not  for  jumping,  and  then  lent  it  to  a  friend  who  killed  it  in  jump- 
ing, he  was  held  liable,  because  what  he  had  done  was  not  an  abuse 
of  the  contract,  but  an  act  which  he  was  expressly  forbidden  to  do, 
and  was  therefore  independent  of  the  contract.'*     In  other  words, 


81  Jag.  Torts,  162;  Clark,  Cont  260;  Jennings  v.  Rundall,  8  Term  R.  335; 
Lowery  v.  Gate,  108  Tenn.  54,  64  S.  W.  1068,  57  L.  R.  A.  673,  91  Am.  St  Rep. 
744;  Eaton  v.  Hill,  50  N.  H.  235,  9  Am.  Rep.  189,  and  eases  hereafter  cited. 

8  2  Jag.  Torts,  162;  Clark,  Cont.  260;  Burnard  v.  Haggis,  14  C.  B.  (N.  S.) 
45 ;  Homer  v.  Thwing,  3  Pick.  (Mass.)  492;  Ray  v.  Tubbs,  50  Vt.  688,  28  Am. 
Rep.  519,  and  cases  hereafter  cited. 

83  Jennings  v.  Rundall,  8  Term  R.  335 ;  Young  v.  Muhllng,  48  App.  Div. 
617,  63  N.  Y.  Supp.  181.  The  infant  cannot  be  held  liable  for  injuries  to  the 
thing  bailed  caused  by  his  mere  lack  of  skill  or  experience.  Moore  v.  East- 
man, 1  Hun  (N.  Y.)  578;  Eaton  v.  Hill,  50  N.  H.  235,  9  Am.  Rep.  180.  In  the 
latter  case  it  was  said:  "When  the  infant  stipulates  for  ordinary  skill  and 
care  in  the  use  of  the  thing  bailed,  but  fails  for  want  of  skill  and  experience, 
and  not  from  any  wrongful  intent,  it  is  in  accordance  with  the  policy  of 
the  law  that  his  privilege,  based  upon  his  want  of  capacity  to  make  and 
fully  understand  such  contracts,  should  shield  him.  A  failure  in  such  a  case, 
from  mere  want  of  ordinary  care  or  skill,  might  well  be  regarded  as,  in, 
substance,  a  breach  of  contract,  for  which  the  infant  is  not  liable,  even 
although  in  ordinary  cases  an  action  ex  delicto  might  be  sustained.  But 
when,  on  the  other  hand,  the  infant  wholly  departs  from  his  character  of 
bailee,  and,  by  some  positive  act,  willfully  destroys  or  injures  the  thing 
bailed,  the  act  is  in  its  natm-e  essentially  a  tort,  the  same  as  if  there  had 
been  no  bailment,  even  if  assumpsit  might  be  maintained  in  the  case  of  an 
adult,  or  a  promise  to  return  the  thing  safely." 

84  Burnard  v.  Haggis,  14  C.  B.  (N.  S.)  45.  The  same  is  true  where  an 
infant  hires  a  horse  to  go  to  one  place,  but  goes  elsewhere,  and  Injures  the 
horse  by  overdriving.  He  is  liable  in  trover  or  trespass.  Homer  v.  Thwing, 
3  Pick.  (Mass.)  492.  And  see  Churchill  v.  White,  58  Neb.  22,  78  N.  W.  369, 
76  .iNjn.  St.  Rep.  64;  Campbell  v.  Stakes,  2  Wend.  (N.  Y.)  137,  19  Am.  I>ec. 
501 ;  Hall  v.  Corcoran,  107  Mass.  251,  9  Am.  Rep.  30 ;  Woodman  v.  Hubbard, 
25  N.  H.  73,  57  Am.  Dec.  310;  Towne  v.  Wiley,  23  Vt.  355,  56  Am.  Dec.  85; 
Ray  v.  Tubbs,  50  Vt.  688,  28  Am.  Rep.  519 ;  Freeman  v.  Boland,  14  R.  I.  39, 
51  Am.  Rep.  340;  Lewis  v.  Lattletield,  15  Me.  233.     Contra,  Penrose  v.  Cur- 


§§   221-222)  LIABILITY    OF   INFANTS    FOR   TORTS.  433 

"if  an  infant  bailee  does  any  willful  or  positive  act,  amounting  to 
an  election  on  his  part  to  disaffirm  the  contract,  or  to  convert  the  prop- 
erty to  his  own  use,  or  if  he  wantonly  and  intentionally  commits  a 
trespass,  his  infancy  is  no  protection."  ®'  A  good  illustration  of  the 
application  of  the  principle  under  consideration  is  in  the  case  of  se- 
duction under  a  promise  of  marriage.  A  promise  by  an  infant  to  mar- 
ry is  not  binding  on  him,  and  he  could  not  be  sued  for  the  mere  breach 
thereof;  but  he  may,  nevertheless,  be  held  liable  in  an  action  ex  de- 
licto for  seducing  a  woman  under  a  promise  of  marriage.^® 

This  question  frequently  arises  in  actions  against  an  infant  for 
fraud  in  connection  with  a  contract.  If  the  action  proceeds  on  the 
idea  that  the  contract  exists,  it  cannot  be  maintained.  Thus,  an  ac- 
tion will  not  lie  against  an  infant  for  false  warranty  in  the  sale  of 
goods ;  ^^  nor  will  an  action  lie  for  falsely  warranting  a  horse  to  be 
sound.'*  It  has  been  held  that,  if  an  infant  obtains  goods  by  false 
representations — and  this  includes  false  representations  that  he  is 
of  age — the  other  party  may  avoid  the  contract  on  the  ground  of 
the  fraud;  and  in  such  event  the  property  may  be  considered  as  nev- 
er having  passed  from  him,  or  as  having  revested  in  him,  and  there- 
fore he  may  maintain  replevin  to  recover  the  goods,  or  trover  for 
their  conversion.^®  The  cases  are  agreed  that  at  law  false  represen- 
tations by  an  infant  that  he  is  of  age,  inducing  the  other  party  to  con- 
tract with  him,  do  not  estop  him  from  pleading  his  infancy  if  sued 
upon  the  contract.®"     Nor  will  such  false  representations  estop  him 


ren,  3  Rawle  (Pa.)  351,  24  Am.  Dec.  356;  Wilt  v.  Welsh,  6  Watts  (Pa.)  9.  And 
see  Schenk  v.  Strong,  4  N.  J.  Law,  97.  That  trover  will  lie  for  goods  con- 
verted by  an  infant,  although  in  his  possession  by  virtue  of  a  contract,  see, 
also,  Vasse  v.  Smith,  6  Ci-anch,  22(3,  3  L.  Ed.  207;  Fitts  v.  Hall,  9'N.  H.  441 ; 
Mathews  v.  Cowan,  59  111.  341. 

85  Jag.  Torts,  162. 

86  Becker  v.  Mason,  93  Mich.  336,  53  N.  W.  361. 

STPrescott  v.  Norris,  32  N.  H.  101;  Doran  v.  Smith,  49  Vt.  353;  Studwell 
V.  Shapter,  54  N.  Y.  249. 

ssGilson  V.  Spear,  38  Vt.  311,  88  Am.  Dec.  659;  Green  v.  Greenbank,  2 
Marsh.  C.  P.  485 ;  Hewlett  v.  Haswell,  4  Camp.  118.  But  see  Vance  v.  Word, 
1  Nott  &  McC.  (S.  C.)  197,  9  Am.  Dec.  683. 

8  9  Badger  v.  Phinney,  15  Mass.  359,  8  Am.  Dec.  105;  Neff  v.  Landis,  110 
Pa.  204,  1  Atl.  177. 

»o  Burley  v.  Russell,  10  N.  H.  184,  34  Am.  Dec.  146 ;  Brown  v.  MeCune,  5 
Sandf.  (N.  Y.)  224;  Studwell  v.  Shapter,  54  N.  Y.  249;  Merriam  v.  Cunning- 
ham, 11  Cush.  (Mass.)  40;  Conrad  v.  Lane,  26  Minn.  389,  4  N.  W.  695,  37  Am. 
TIFF.P.&  D.Rel.(2d  En.)— 28 


434  INFANTS.  (Ch.  14 

from  avoiding  his  contract,  and  seeking  affirmative  relief,  as  to  recov- 
er property  which  he  has  parted  with.*^  By  the  weight  of  authori- 
ty, if  an  infant  fraudulently  induces  another  to  deal  with  him  by 
falsely  representing  that  he  is  of  age,  and  afterwards  avoids  the  con- 
tract, the  other  party  may  maintain  an  action  of  deceit  against  him."* 
There  are  cases,  however,  which  hold  the  other  way,^' 

In  equity  an  in'fant  stands  in  a  very  different  position  as  to  his 
fraudulent  representations;  and  where  he  has  falsely  represented 
that  he  is  of  age,  or  been  guilty  of  other  fraudulent  acts,  whereby, 
he  has  entrapped  others  into  selling  or  purchasing  property,  or  ad- 
vancing money  on  it,  he  will  not  be  heard  to  plead  his  infancy  to 
the  other's  prejudice ;  and  the  general  tendency  of  courts  of  equity 
is  to  refuse  to  recognize  the  disability  of  infancy  when  taken  advan- 
tage of  to  commit  a  fraud.®* 

Rep.  412 ;  McKamy  v.  Cooper,  SI  Ga.  G79,  8  S.  E.  312.  And  see  Sims  v.  Ever- 
hardt,  102  U.  S.  300,  26  L.  Ed.  87. 

91  Whitcomb  v.  Joslyn,  51  Vt.  79,  31  Am.  Rep,  678;  Norris  v.  Vance,  3 
Rich.  Law  (S.  C.)  164.  His  false  representation  that  he  is  of  age  will  not 
prevent  him  from  avoiding  his  contract  of  service,  and  from  recovering  on 
a  quantum  meruit.  Burdett  v.  Williams  (D.  C.)  30  Fed.  697.  Nor  will  a  re- 
cital in  a  deed  that  he  is  of  age  estop  him  from  disaffirming  the  deed.  Wie- 
land  V.  Kobick,  110  111.  16,  51  Am.  Rep.  676.  But  see  Bradshaw  v.  Van 
Winkle,  133  Ind.  134,  32  N.  E.  877.  He  may  be  estopped  to  disaffirm  under 
such  circumstances  where  he  stands  by,  after  majority,  knowing  that  the  laud 
is  being  conveyed  to  subsequent  purchasers.  Lacy  v.  Pixler,  120  Mo.  383, 
25  S.  W.  206;  ante,  p.  412. 

8  2  Fitts  V.  Hall,  9  N.  H.  441;  Rice  v.  Boyer,  108  Ind.  472,  9  N.  E.  420, 
58  Am.  Rep.  53 ;  Wallace  v.  Morss,  5  Hill  (N.  Y.)  391 ;  Eckstein  v.  Frank,  1 
Daly  (N.  Y.)  334. 

9  3  Johnson  v.  Pie,  1  Lev.  169  (approved  by  Parke,  B.,  in  Price  v.  Hewett, 
8  Exch.  146) ;  Brooks  v.  Sawyer,  191  Mass.  151,  76  N.  E.  953,  114  Am.  St.  Rep. 
594 ;  Nash  v.  Jewett,  61  Vt.  501,  18  Atl.  47,  4  L  R.  A.  561,  15  Am.  St.  Rep.  931. 
See  Ferguson  v.  Bobo,  54  Miss.  121. 

94  Savage  v.  Foster,  9  Mod.  35;  Cory  v.  Gertcken,  2  Madd.  40;  Ex  parte 
Unity  Joint-Stock  Mut.  Banking  Ass'n,  3  De  Gex  &  J.  63;  Overton  v.  Ban- 
ister, 3  Hare,  503;  Ferguson  v.  Bobo,  54  Miss.  121;  Evans  v.  Morgan,  69 
Miss.  328,  12  South.  270;  Hayes  v.  Parker,  41  N.  J.  Eq.  630,  7  Atl.  511; 
Schmitheimer  v.  Eiseman,  7  Bush  (Ky.)  298.  Contra,  Geer  v.  Hovy,  1  Root 
(Conn.)  179.  And  see  Sims  v.  Everhardt,  102  U.  S.  300,  26  L.  Ed.  87 ;  Brown 
V.  McCune,  5  Sandf.  (N.  Y.)  224.  False  representations,  known  by  the  party 
to  whom  they  were  made  to  be  false,  will  not  estop  the  infant.  Charles 
V.  Hastedt,  51  N.  J.  Eq.  171,  26  Atl.  564.  Mere  failure  to  disclose  his  age 
has  been  held  not  to  estop  a  minor  from  avoiding  his  contract,  even  in  equity. 
Baker  v.  Stone,  136  Muss.  405;  Sewell  v.  Sewell,  92  Ky.  500,  18  S.  W.  102, 


§§    223-224)      KESPONSIBILITY   OF   INFA>fTS   FOR   CRIME,  435 

Where  the  substance  of  the  action  is  in  tort,  it  cannot  be  defeat- 
ed by  the  plea  of  infancy,  though  it  is  in  form  an  action  ex  contrac- 
tu, for,  as  has  been  seen,  an  infant  is  bound  by  obligations  quasi  ex 
contractu,  or  contracts  created  by  law.®^  Thus,  if  he  embezzles  or 
converts  money,  the  party  injured  may  waive  the  tort,  and  maintain 
assumpsit  for  money  had  and  received,  and  infancy  will  be  no  de- 
fense.®' 

RESPONSIBII/ITY   OF   INFANTS   FOR    CRiaiE. 

223.  At  common  law  a  child  under  the  age  of  7  years  is  conclusively 

presumed  to  he  incapable  of  entertaining  a  criminal  intent, 
and  cannot  commit  a  crime.  Between  the  ages  of  7  and  14 
the  presumption  still  exists,  hut  may  he  rebutted.  After  the 
age  of  14  he  is  presumed  to  have  snf&cient  capacity,  and  must 
affirmatively  show  the  contrary. 

224.  At  common  law  a  boy  under  the  age  of  14  is  conclusively  pre- 

sumed physically  incapable  of  committing  rape.  In  some  ju- 
risdictions, though  the  presumption  exists,  it  may  be  rebutted. 

The  ground  of  an  infant's  general  exemption  from  criminal  respon- 
sibility for  his  acts  is  the  want  of  sufficient  mental  capacity  to  en- 
tertain the  criminal  intention  which  is  an  essential  element  of  every 
crime.  If  a  child,  when  he  commits  a  wrongful  act,  is  under  the  age 
of  7  years,  not  even  the  clearest  evidence — not  even  his  own  confes- 
sion, indeed — will  be  received  on  the  part  of  the  state  to  show  that  he 
was  of  a  mischievous  discretion.  Under  that  age  he  is  absolutely  ir- 
responsible.®^    If,  however,  he  has  reached  the  age  of  7,  the  state  is 

36  Am.  St.  Rep.  606;  Davidson  v.  Young,  38  111.  145;  Price  v.  Jennings,  02 
Ind.  Ill;  Thormaehlen  v.  Kaeppel,  86  Wis.  378,  56  N.  W.  1089.  Ferguson 
V.  Bobo,  supra,  apparently  contra,  is  distinguished  in  Brantley  v.  Wolf,  60 
Miss.  420. 

85  Ante,  p.  391. 

»«  Bristow  V.  Eastman,  1  Esp.  172 ;  Elwell  v.  Martin,  32  Vt.  217,  In  the 
latter  case  the  court  says:  "As  infancy  does  not  protect  him  from  the  con- 
sequences of  his  tortious  acts,  why  should  it  furnish  him  with  a  defense 
when  sued  ex  contractu,  instead  of  ex  delicto?  *  •  *  It  is  not  a  contract 
•in  which  he  may  have  been  cheated,  and  against  which  infancy  shields  him, 
but  a  willful  wrong  which  he  has  committed  against  another,  and  in  whic/i 
the  law  implies  the  obligation  to  make  restitution."  And  see  Shaw  v.  Ck)ffin. 
58  Me.  254,  4  Am.  Rep.  290. 

97  4  Bl.  Comm.  22;  1  Hale,  P.  C.  26,  27;  Clark,  Cr.  Law,  49;  Clark,  Cr.  Cas 
77;  State  v.  Fisk,  15  N.  D.  589,  108  N.  W.  485 ;  State  v.  Davis,  104  Tenu.  501. 
58  S.  W.  122;  People  v.  Townsend,  3  Hill  (N.  Y.)  479.    The  statutes  in  som* 


436  INFANTS.  (Ch.  14 

permitted  to  prove  that  he  was  of  sufficient  capacity  to  entertain  a 
criminal  intention.  In  the  absence  of  such  proof,  he  is  not  responsible, 
and  the  proof,  to  warrant  a  conviction,  must  be  clear  and  convin- 
cing.®^ It  has  been  held  that  a  conviction  cannot  be  had  on  his  own 
mere  naked  confession,*®  but  there  are  cases  holding  the  contrary, 
where  the  corpus  delicti  is  otherwise  proved.^  When  a  child  has 
reached  the  age  of  14,  he  is  presumed  capable  of  committing  crime ;  * 
and,  to  escape  responsibility,  he  must  affirmatively  show  want  of  ca- 
pacity.^ In  England,  a  boy  of  10  years,  who,  after  killing  a  little 
girl,  hid  her  body,  was  held  criminally  liable,  because  the  circumstan- 
ces showed  a  mischievous  discretion ;  *  and  a  boy  of  8  years  was  hang' 
ed  for  arson.'  In  this  country,  a  boy  of  12  has  been  hanged  for  mur- 
der.' 

few  states  have  raised  the  age  of  absolute  incapacity  to  10  years,  Angelo  v. 
People,  96  111.  209,  36  Am.  Rep.  132;  Singleton  v.  State,  124  Ga.  136,  52  S. 
E.  156. 

88  Rex  V.  Owen,  4  Car.  &  P.  236;  State  v.  Davis,  104  Tenn.  501,  58  S.  W. 
122 ;  State  v.  Fisk,  15  N.  D.  589,  108  N.  W.  485 ;  Singleton  v.  State,  124  Ga. 
136,  52  S.  E.  156;  Angelo  v.  People,  96  111.  209,  36  Am.  Rep;  132;  Carr  v. 
State,  24  Tex.  App.  562,  7  S.  W.  328,  5  Am.  St.  Rep.  905;  State  v.  Barton, 
71  Mo.  288 ;  Wusnig  v.  State,  33  Tex.  651 ;  People  v.  Domenico,  45  Misc.  Rep. 
309,  92  N.  Y.  Supp.  390;  Harrison  v.  State,  72  Ark.  117,  78  S.  W.  763 ;  State 
V.  Adams,  76  Mo.  355;  State  v.  Fowler,  52  Iowa,  103,  2  N.  W.  983.  Assault 
and  battery  by  12  year  old  child.  State  v.  Goin,  9  Humph.  (Tenn.)  175.  See, 
also,  State  v.  Tice,  90  Mo.  112,  2  S.  W.  269;  State  v.  Pugh,  52  N.  C.  61;  Hill 
V.  State,  63  Ga.  578,  36  Am.  Rep.  120.  Sale  of  liquor  by  child.  Com.  v.  Mead, 
10  Allen  (Mass.)  398.  Burglary  by  a  child  under  13,  Simmons  v.  State,  50 
Tex.  Cr.  R.  527,  97  S.  W.  1052. 

»»  State  V.  Aaron,  4  N.  J.  Law,  231,  7  Am.  Dec.  592;  People  v.  Domenico, 
45  Misc.  Rep.  309,  92  N.  Y.  Supp.  390.  But  see  Ex  parte  White,  50  Tex.  Cr. 
R.  473,  98  S.  W.  850. 

1  State  V.  Guild,  10  N.  J.  Law,  163,  18  Am.  Dec.  404.  And  see  Fost.  Grown 
Law,  72 ;  State  v.  Bostick,  4  Har.  (Del.)  563. 

2  Brown  v.  State,  47  Tex.  Cr.  R.  326,  83  S.  W.  378;  Neal  v.  State  (Tex.  Cr. 
App.)  101  S.  W.  212;  Vinson  v.  State,  124  Ga.  19,  52  S.  E.  79. 

8  Irby  V.  State,  32  Ga.  496;  State  v.  Thrailkill,  73  S.  C.  314,  53  S.  E.  482; 
Law  V.  Com.,  75  Va.  885,  40  Am.  Rep.  750.  His  own  testimony  tliat  he  did 
not  know  the  act  was  wrong  is  not  enougti.  State  v.  Kluseman,  53  Minn. 
541,  55  N.  W.  741. 

*  York's  Case,  Fost.  Crown  Law,  70. 

6  Emlyn  on  1  Hale,  P.  C.  25. 

6  State  v.  Guild,  10  N.  J.  Law,  163,  18  Am.  Dec.  404.  And  see  State  v. 
Aaron,  4  N.  J.  Law,  231,  7  Am.  Dec.  592;  Godfrey  v.  State,  31  Ala.  323,  70 
Am.  Dec.  494;  Martin  v.  State,  90  Ala.  602,  8  South.  858,  24  Am.  St.  Rep.  Mi. 


I 


§§   223-224)      RESPONSIBILITY    OF   INFANTS   FOR   CRIME.  437 

There  are  some  exceptions  to  these  rules  in  case  of  certain  crimes 
of  omission,  such  as  negligently  permitting  felons  to  escape,  failure 
to  repair  highways,  etc. ;  infants  being  held  exempt  from  responsi- 
bility in  such  case  until  they  reach  the  age  of  21  years,  on  the  ground 
that  until  then,  not  having  command  of  their  fortune,  they  are  un- 
able to  do  these  acts  as  required  by  law.'^ 

At  the  common  law  a  boy  who  has  not  attained  the  age  of  14  years 
is  conclusively  presumed  not  to  have  sufficient  physical  capacity  to 
commit  the  crime  of  rape.*  Some  of  the  courts  in  this  country,  while 
they  recognize  the  presumption,  hold  that  it  is  not  a  conclusive  pre- 
sumption, but  one  that  may  be  rebutted  by  proof  of  capacity.®  A  boy 
under  the  age  of  14  may  be  guilty  as  principal  in  the  second  degree  or 
accessory  to  the  crime  committed  by  another,  if  of  sufficient  mental 
capacity  to  be  responsible  for  his  crimes,  though  lacking  in  physical 
capacity  to  commit  the  crime  himself.^" 

7  4  Bl.  Comm.  22.  A  minor  who  has  not  been  emancipated  or  Is  not  pos- 
sessed of  property  cannot  be  held  criminally  liable  for  failure  to  support  his 
wife.  People  v.  Todd,  61  Mich.  234,  28  N.  W.  79.  A  minor  under  16  cannot 
be  convicted  of  vagrancy.  Johnson  v.  State,  124  Ga.  421,  52  S.  E.  737.  Nor 
can  a  minor  be  convicted  of  selling  mortgaged  goods,  as  he  has  a  right  to  dis- 
affirm the  mortgage,  and  in  effect  does  so  by  the  sale.  Jones  v.  State,  31 
Tex.  Cr.  R.  252,  20  S.  W.  578.  But  he  may  be  held  liable  in  bastardy  pro- 
ceedings.    Chandler  v.  Com.,  4  Mete.  (Ky.)  66. 

8  Clark,  Cont.  191;  Reg.  v.  Philips,  8  Car.  &  P.  786;  Com.  v.  Green,  2  Pick. 
(Mass.)  380;  McKinny  v.  State,  29  Fla.  565,  10  South.  732,  30  Am.  St.  Rep. 
140. 

9  Williams  v.  State,  14  Ohio,  222,  45  Am.  Dec.  536 ;  People  v.  Randolph, 
2  Parker,  Cr.  R.  (N.  Y.)  174;  Heilman  v.  Com.,  84  Ky.  457,  1  S.  W.  731,  4 
Am.  St.  Rep.  207;  Wagoner  v.  State,  5  Lea  (Tenn.)  352,  40  Am.  Rep.  36; 
State  V.  Jones,  39  La.  Ann.  935,  3  South.  57. 

10  1  Hale,  P.  C.  630;  Law  v.  Com.,  75  Va.  885.  40  Am.  Rep.  750. 


438 


PERSONS  NON   COMPOTES  MENTIS  AND   ALIENS.  (Ch.  15 


CHAPTER    XV. 
PERSONS    NON    COMPOTES    MENTIS    AND    ALIENS. 

225-246.  Persons  Non  Compotes  Mentis. 

225.  In  General. 

226.  Inquisition. 
227-228.  Guardianship. 

229.  Custody  and  Support 

230-234.  Contracts. 

231-234.  Ratification  and  Avoidance  of  Contracts. 

235.  Liability  for  Torts. 

236-239.  Responsibility  for  Crimes. 

240-241.  Capacity  to  Make  a  Will. 

242-246.  Drunken  Persons. 

242-243.  Contracts. 

244.  Liability  for  Torts. 

245.  Responsibility  for  Crimes. 

246.  Capacity  to  Make  a  WiU. 
247-252.  Aliens. 


PERSONS    NON    COMPOTES   MENTIS. 

225.   A  person  is   non  compos   mentis   •who  is   of   nnsonnd   mind;   tlie 
term  being  a  generic  one,  and  including  all  forms  of  insanity. 

Insanity  is  "a  manifestation  of  disease  of  the  brain,  characterized 
by  a  general  or  partial  derangement  of  one  or  more  faculties  of  the 
mind,  and  in  which,  while  consciousness  is  not  abolished,  mental  free- 
dom is  perverted,  weakened,  or  destroyed."  ^  The  term  is  used  broad- 
ly in  the  law,  to  denote  all  kinds  of  mental  alienation,  and  as  synony- 
mous with  the  phrase  "non  compos  mentis."  Coke  enumerates  four 
classes  of  persons  who  are  deemed  in  law  to  be  insane  or  non  compos 
mentis,  namely:  (1)  An  idiot  or  fool  natural — that  is,  a  person  who 
has  been  of  unsound  mind  since  his  birth;  (2)  he  who  was  of  good 
and  sound  mind  and  memory,  but,  by  the  act  of  God,  has  lost  it;  (3) 
a  lunatic,  lunaticus,  qui  gaudet  in  lucidis  intervallis,  who  sometimes  is 
of  good  sound  mind  and  memory,  and  sometimes  non  compos  mentis ; 


1  Black,  Law  Diet.  tit.  "Insanity" ;  Ham.  Nerv.  Sys.  332.  A  deaf  mute  is 
not  presumed  to  be  an  idiot.     Alexier  v.  Matzke,  151  Mich.  36,  115  N.  W.  251. 


§   225)  PERSONS   NON   COMPOTES  MENTIS.  439 

and  (4)  one  who  is  non  compos  mentis  by  his  own  act,  as  a  drunkard.^ 
The  last  class  will  be  considered  separately,  for  drunkenness  is  not 
generally  understood  as  a  phase  of  insanity  in  law,  and  in  many  re- 
spects the  rules  relating  to  insanity  do  hot  apply  in  the  case  of  drunk- 
enness. 

The  status  of  an  insane  person  is  peculiar.  As  an  incompetent  per- 
son he  is  subject  to  the  control  of,  and  entitled  to  protection  by,  the 
state.  As  he  is  lacking  in  mind,  he  can  do  no  act  which  requires  an 
intelligent  mental  operation.  In  the  following  sections  we  shall  con- 
sider his  capacity  to  contract,  his  capacity  to  make  a  will,  his  liability 
for  torts,  and  his  responsibility  for  crime. 


2  Black,  Law  Diet,  tit  "Non  Compos  Mentis."    Co.  Litt.  247a ;  In  re  Bever- 
ley, 4  Coke,  124;  Johnson  v.  Pliifer,  6  Neb.  404 ;  Somers  v.  Pumphrey,  24  Ind. 
231.    "The  most  common  forms  in  whicli  it  [insanity]  presents  itself  are  those 
of  mania,  monomania,  and  dementia.     All  these  imply  a  derangement  of  the 
faculties  of  the  mind  from  their  normal  or  natural  condition.     Idiocy,  which 
is  usually  classed  under  the  general  designation  of  'insanity,'  is  more  prop- 
erly the  absence  of  mind  than  the  derangement  of  its  faculties.     It  is  con- 
genital— that  is,  existing  in  birth — and  consists  not  in  the  loss  or  derange- 
ment of  the  mental  powers,  but  in  the  destitution  of  powers  never  possessed. 
Mania  is  that  form  of  insanity  where  the  mental  derangement  is  accompanied 
with  more  or  less  of  excitement.     Sometimes  the  excitement  amounts  to  a 
fury.    The  individual  in  such  cases  is  subject  to  hallucinations  and  illusions. 
He  is  impressed  with  the  reality  of  events  which  have  never  occurred,  and 
of  things  which  do  not  exist,  and  acts  more  or  less  in  conformity  with  his 
belief  in  these  particulars.     The  mania  may  be  general,   and   affect   all   or 
most  of  the  operations  of  the  mind;  or  it  may  be  partial,  and  be  confined  to 
particular  subjects.     In  the  latter  case  it  is  generally  termed  'monomania.' 
Dementia   is   that   form   of   insanity   where   the   mental   derangement   is   ac- 
companied with  a  general  enfeeblement  of  the  faculties.     It  is  characterized 
by  forgetfulness,  inability  to  follow  any  train  of  thought,  and  indifference 
to  passing  events.     'In  dementia,'  says  Ray,  a  celebrated  writer  on  medical 
jurisprudence,  'the  mind  is  susceptible  of  only  feeble  and  transitory  impres- 
sions, and  manifests  but  little  reflection  even  upon  these.     They  come  and 
go  without  leaving  any  trace  of  their  presence  behind  them.     The  attention 
is  incapable  of  more  than  a  momentary  efCort,  one  idea  succeeding  another 
with  but  little  connection  or  coherence.     The  mind  has  lost  the  power  of 
comparison,  and  abstract  ideas  are  utterly  beyond  its  grasp.     The  memory 
is  peculiarly  weak,  events  the  most  recent  and  most  nearly  connected  with 
the  individual  being  rapidly  forgotten.     The  language  of  the  demented  is  not 
only   incoherent,   but  they   are  much   inclined  to   repeat   isolated   words   and 
phrases  without  the  slightest  meaning.'  "     Fer  Field,  C.  J.,  in  Hall  v.  Unger, 
Fed.  Cas.  No.  5,949. 


440  PERSONS  NON  COMPOTES  MENTIS  AND   ALIENS.  (Ch.  15 


INQUISITION. 

226.  The  mode  of  ascertaining  tlie  insanity  of  a  person  is  by  a  com- 
mission in  lunacy  in  the  nature  of  a  \(rrit  de  lunatico  in- 
quirendo. 

In  England  commissions  in  the  nature  of  writs  de  lunatico  inqui- 
rendo  issue  in  chancery  on  the  petition  of  the  Attorney  General  or 
a  friend  of  the  insane  person.  The  practice  is  substantially  the  same 
in  American  courts  of  chancery  or  probate  having  insanity  jurisdic- 
tion.^ The  purpose  of  the  commission  is  to  determine,  first,  whether 
the  subject  of  the  inquiry  is  a  lunatic  or  not,  and,  if  he  is  found  to  be 
a  lunatic,  then  to  provide  for  the  safeguarding  of  both  his  person  and 
his  property.*  The  proceeding  may  be  instituted  by  a  relative  of  the 
person,^  the  commonwealth's  attorney,^  but  not  by  a  mere  stranger/ 
unless  authorized  by  statute.* 

The  inquisition  is  conclusive  of  the  insanity  of  the  person  at  the 
time  of  the  finding,'  but  not  of  the  existence  of  insanity  at  a  later 
time,^°  though  it  does  substitute  for  the  general  presumption  of  sanity 
a  presumption  of  insanity.^^  The  adjudication  is  not  conclusive  as  to 
the  existence  of  insanity  prior  to  the  time  of  the  finding;  ^^  but,  if  the 
inquiry  covered  the  anterior  period,  it  raises  a  presumption  of  prior 
insanity.^' 


8  Burke  v.  Wheaton,  3  Cranch,  0.  O.  341,  Fed.  Cas.  No.  2,164 ;  Halett  v. 
Patrick,  49  Cal.  590;  Cox  v.  Osage  County,  103  Mo.  385,  15  S:  W.  763. 
*  In  re  Misselivitz,  177  Pa.  359,  35  Atl.  722. 
B  Treasurer  of  Insane  Hospital  v.  Belgrade,  35  Me.  497. 

6  Coleman  v.  Commissioners  of  Lunatic  Asylum,  6  B.  Mon.  (Ky.)  239. 

7  In  re  Covenhoven,  1  N.  J.  Eq.  19. 

8  Jessup  V.  Jessup,  7  Ind.  App.  573,  34  N.  E.  1017. 

9  Soules  V.  Robinson,  158  Ind.  97,  62  N.  E.  999,  92  Am.  St.  Rep.  301.  It 
is,  however,  questionable  whether  the  adjudication  is  conclusive  as  against 
strangers  to  the  proceedings.     Hill  v.  Day,  34  N.  J.  Eq.  150. 

10  Lucas  V.  Parsons,  23  Ga.  267;  Clark's  Ex'r  v.  Trail's  Adm'rs,  1  Mete. 
(Ky.)  35. 

11  Redden  v.  Baker,  86  Ind.  191;  Mutual  Life  Ins.  Co.  v.  Wiswell,  56  Kan. 
765,  44  Pac.  996,  35  L.  R.  A.  258. 

12  Shirley  v.  Taylor's  Heirs,   5  B.   Mon.   (Ky.)  99. 

13  Small  V.  Champeny,  102  Wis.  61,  78  N.  W.  407;  Hughes  v.  Jones,  IIG 
N.  Y.  67,  22  N.  E.  446,  5  L.  R.  A.  637,  15  Am.  St  Rep.  3SQ. 


§  229)  CUSTODY  AND   SUPPORT.  441 

GUARDIANSHIP, 

227.  The  gnardianship   of   persons   non   compotes  mentis  Is   provided 

for  by  statute  in  most  jurisdictions.  Generally  the  probate  or 
some  similar  court  is  given  the  poxirer  to  appoint  a  guardian 
or  committee  of  tbe  persons  and  estates  of  insane  persons; 
and  in  some  states  tbe  povrer  is  extended  to  include  drunkards 
or  spendthrifts. 

228.  The  guardianship  of  persons  non  compotes  mentis  is  governed  by 

substantially  the  same  rules  of  lajxr  as  the  guardianship  of  in- 
fants. 

The  crown  as  parens  patriae  had  authority  over  the  care  and  cus- 
tody of  infants,  but  this  authority  did  not  originally  extend  to  persons 
non  compotes  mentis.  It  was,  however,  conferred  on  the  crown  by 
Parliament,  and  intrusted  under  the  sovereign's  sign  manual  to  the 
Lord  Chancellor.  In  this  country  the  guardianship  of  persons  non 
compotes  mentis  is  regulated  by  statute,  jurisdiction  being  generally 
conferred  on  the  probate  or  other  similar  court.  Guardianship  over 
spendthrifts  was  unknown  at  common  law,  but  is  not  uncommon  un- 
der statutes  in  this  country.  In  some  jurisdictions  a  person  to  whom 
the  court  has  intrusted  the  guardianship  of  an  insane  person  or  spend- 
thrift is  called  a  "guardian,"  while  in  others  he  is  called  a  "commit- 
tee." The  principles  and  rules  of  law  governing  the  relation  of  guard- 
ian and  insane  ward  are  substantially  the  same  as  those  which  govern 
the  relation  of  guardian  and  infant  ward.  These  have  already  been 
explained.^*  The  eflFect  of  guardianship  on  the  capacity  of  the  ward 
to  contract  and  to  make  a  will  will  be  considered  in  the  following  sec- 
tions." 

CUSTODY  AND  SUPPORT. 

229.  The  state  has  power  through  the  courts  to  control  and  regulate 

the  custody  of  insane  persons,  to  provide  for  their  support, 
and  to  enforce  the  liability  therefor. 

While  the  guardian  of  an  insane  person  has  general  custody  of  the 
person,  and  may  care  for  and  control  him  in  ordinary  circumstances,^' 
this  power  is  subject  to  the  general  authority  of  the  state,  which  may, 

14  Ante,  p.  328.  ib  Post,  pp.  442.  456. 

18  State  V.  Lawrence.  86  Minn.  310,  90  N.  W.  769,  58  L.  R.  A.  931;  Ander- 
son V.  Anderson,  42  Vt.  350,  1  Am.  Rep.  334. 


442  PERSONS  NON   COMPOTES  MENTIS  AND   ALIENS.  (Ch.  15 

if  the  public  welfare  or  the  welfare  of  the  incompetent  demands  it, 
commit  the  insane  person  to  a  proper  asylum,^^  or  in  a  proper  case 
direct  the  removal  of  the  person  from  the  state.^* 

Generally  the  relatives  of  an  indigent  insane  person  are  charged  by 
statute  with  his  support,^"  or,  if  the  insane  person  has  a  guardian, 
that  duty  devolves  on  him.^**  By  statute  the  duty  of  supporting  in- 
sane persons  is  under  certain  conditions  imposed  on  the  public  au- 
thorities. 

CONTRACTS  OF  INSANE  PERSONS. 

230.  As  a  general  rule,  a  contract  entered  into  by  a  person  iv^hen  lie 
is  so  insane  as  to  be  incapable  of  understanding  its  nature  and 
effect  is  voidable  at  bis  option.  Tbe  rule  is  subject,  boxrever, 
to  tbe  folloTO^ing  exceptions: 

(a)  Tbe  folloxiring  contracts  are  valid  and  binding: 

(1)  Contracts   created  by  law,   or  quasi  contracts. 

(2)  Contracts    for  necessaries  furnisbed   to   bimself,   or,  by  tbe 

xreigbt  of  authority,  to  bis  Tvife  or  children. 

(3)  In  most,  but  not  all,  jurisdictions,  ivhere  the  other  party  to 

tbe  contract  acted  fairly  and  in  good  faith,  'without  actual 
or  constructive  kno^vledge  of  the  other's  insanity,  and  tbe 
contract  has  been  so  far  executed  that  be  cannot  be  placed 
in  statu  quo. 

(b)  Tbe  follovring  contracts  are  absolutely  void: 

(1)  In   most,   but   not   all,   jurisdictions,    contracts   by   a   person 

TP^bo  has  been  judicially  declared  insane,  and  placed  under 
guardianship. 

(2)  In    a    few    jurisdictions,    deeds    and    powers    of    attorney    or 

other  appointments  of  an  agent. 

It  was  at  one  time  said  to  be  a  maxim  of  the  common  law  that  no 
man  of  full  age  should  be  allowed  by  plea  to  stultify  himself  by  plead- 
ing insanity,  and  thereby  avoid  his  deed  or  contract;  ^^  but  if  this  was 

IT  Brickway's  Case,  80  Pa.  65 ;  Board  of  Com'rs  of  Madison  County  v. 
Moore,  IGl  Ind.  426,  68  N.  E.  905 ;  In  re  Doyle,  17  R.  I.  37,  19  Atl.  1083. 

18  Parsee  Merchant's  Case,  11  Abb.  Prac.  N.  S.  (N.  Y.)  209. 

10  Watt  V.  Smith,  89  Cal.  602,  26  Pac.  1071;  Richardson  v.  Stuesser,  125 
Wis.  66,  103  N.  W.  261,  69  L.  R.  A.  829. 

2  0  Creagh  v.  Tunstall,  98  Ala,  249,  12  South.  713.  He  is  not,  however, 
personally  liable,  unless  be  makes  himself  so  by  contract.  Merrimack  County 
V.  Kimball,  62  N.  H.  67. 

21  Beverley's  Case,  4  Coke,  123b;  Co.  Litt  147;  2  Bl.  Comm.  292. 


§    230)  INSANE   PERSONS — CONTRACTS.  443 

ever  the  law,  which  is  very  doubtful,^'  it  is  so  no  longer.  It  is  uni- 
versally held  that  a  contract  made  by  a  person  who  is  so  lacking  in 
mental  capacity  from  defect  or  disease  of  the  mind  as  to  be  incapable 
of  understanding  its  nature  and  effect  is,  as  a  general  rule,  voidable, 
at  least  where  the  other  party  knew  of  his  condition,  and  in  most  cases 
whether  there  was  such  knowledge  or  not.^^  The  reason  is  that  a  con- 
tract requires  the  assent  of  two  minds,  and  an  insane  person  has  no 
mind,  and  is  therefore  incapable  of  assenting. 

It  makes  no  difference  what  the  form  of  the  insanity  may  be,  or 
what  caused  it.^*  It  must  be  something  more  than  mere  weakness  of 
intellect,^"  but  it  need  not  be  so  great  as  to  dethrone  reason,  or  to 
amount  to  an  entire  want  of  reason.^"  It  must  be  such  as  to  render 
the  person  incapable  of  comprehending  the  subject  of  the  contract, 
and  its  nature  and  probable  consequences.^^  If  the  party  is  insane  at 
times  only,  the  contract,  to  be  voidable,  must  have  been  made  while 


22  Fitzh.  Nat  Brev.  202;  Tates  v.  Boen,  2  Strange,  1104;  Webster  v.  Wood- 
ford, 3  Day  (Conn.)  90;  Mitchell  v.  Kingman,  5  Pick.  (Mass.)  431. 

2  3  Webster  v.  Woodford,  3  Day  (Conn.)  90;  Mitchell  v.  Kingman,  5  Pick. 
(Mass.)  431 ;  Rice  v.  Peet,  15  Johns.  (N.  Y.)  503 ;  Morris  v.  Clay,  53  N.  C.  216 ; 
Burnham  v.  Mitchell,  34  Wis.  117;  Clark,  Cont.  264,  and  cases  there  cited. 

24  Idiocy,  Burnham  v.  Kidwell,  113  111.  425 ;  Ball  v.  Mannin,  3  Bligh  (N. 
S.)  1;  Ewell,  Lead.  Cas.  534.  Lunacy,  Jackson  v.  Gumaer,  2  Cow,  (N.  Y.)  552. 
Senile  dementia.  Stone  v.  Wilbern,  S3  111.  105;  Jeneson  v.  Jeneson,  06  111.  259; 
Guild  V.  Hull,  127  111.  523,  20  N.  E.  665;  Lynch  v.  Doran,  95  Mich.  395,  54 
N.  W.  882;  Arnold  v.  Whitcomb,  S3  Mich.  19,  46  N.  W.  1029;  Keeble  v.  Cum- 
mins, 5  Hay  w.  (Tenn.)  43 ;  Clark,  Cont.  264,  265,  and  cases  there  cited. 

25  Dennett  v.  Dennett,  44  N.  H.  531,  84  Am.  Dec.  97;  Saffer  v.  Mast,  223 
111.  108,  79  N.  E.  32;  Miller  v.  Craig,  36  111.  110;  Stone  v.  Wilbern,  S3  111. 
105;  Guild  v.  Hull,  127  111.  523,  20  N.  E.  665;  Simonton  v.  Bacon,  49  Miss. 
582;  Lawrence  v.  Willis,  75  N.  C.  471;  Farnam  v.  Brooks,  9  Pick!  (Mass.) 
212;  West  v.  Russell,  48  Mich.  74,  11  N.  W.  812;  Davis  v.  Phillips,  85  Mich. 
198,  48  N.  W.  513;  Clark,  Cont  265,  and  cases  there  cited.  So,  where  a 
person  is  not  entirely  without  understanding,  and  makes  a  contract,  compre- 
hending its  full  force  and  effect,  and  no  fraud  or  deceit  has  been  practiced 
upon  him,  such  a  contract  will  not  be  rescinded.  Ratliff  v.  Baltzer's  Adm'r, 
13  Idaho,  152,  89  Pac.  71. 

26  Ball  V.  Mannin,  3  Bligh  (N.  S.)  1 ;  Ewell,  Lead.  Cas.  534, 

2  7  Dennett  v.  Dennett,  44  N.  H.  531,  84  Am.  Dec.  97;  Swartwood  v.  Chance, 
131  Iowa,  714,  109  N.  W.  297;  Bond  v.  Bond,  7  Allen  (Mass.)  1;  Brown  v. 
Brown,  108  Mass.  386;  Lilly  v.  Waggoner,  27  111.  396;  Baldwin  v.  Dunton, 
40  111,  188;  Titcomb  v,  Vantyle,  84  111.  371 ;  Perry  v.  Pearson,  135  111.  218,  25 
N.  E.  636;  Burnham  v.  Mitchell,  34  Wis.  136;  Clark,  Cont  266,  267,  and 
cases  there   cited. 


444  PERSONS   NON   COMPOTES  MENTIS  AND   ALIENS.  (Ch.  15 

he  was  insane.  If  made  during  a  lucid  interval,  it  is  binding.^^  Per- 
manent insanity  need  not  be  shown.  It  is  enough  if  insanity  existed 
at  the  time  the  contract  was  made,  though  the  party  may  have  been 
perfectly  sane  both  before  and  afterwards.^'  Neither  need  it  be  shown 
that  the  insanity  was  general,  A  person  who  is  laboring  under  an  in- 
sane delusion  is  incapable  of  making  a  contract  if  his  delusion  is  so 
connected  with  the  subject-matter  of  the  particular  contract  as  to  pre- 
vent him  from  comprehending  its  nature  and  probable  consequences. 
If  such  was  his  condition,  he  may  avoid  the  contract,  though  he  may 
have  been  perfectly  sane  in  respect  to  other  matters,  and  might  have 
been  able  to  make  a  binding  contract  in  reference  to  some  other  subject- 
matter.^''  The  delusion  must  have  been  so  connected  with  the  sub- 
ject-matter of  the  contract  to  avoid  it.*^ 

Whether  Contracts  are  Void  or  Voidable. 

It  has  been  held  by  some  courts  that  the  deed  of  an  insane  person,'^ 
or  a  power  of  attorney  or  other  appointment  of  an  agent,^^  or  the 
transfer  of  a  note,^*  is  absolutely  void  and  of  no  effect  whatever.  In 
most  states  however,  no  distinction  is  made  in  this  respect  between 
the  deed  of  an  infant  and  that  of  an  insane  person,  or  between  the 
deed  of  an  insane  person  and  any  other  kind  of  contract;    and  it  is 

28  Hall  V.  Warren,  9  Ves.  605;  Critchfield  v.  Easterday,  26  App.  D.  C  89; 
Lilly  V.  Waggoner,  27  111.  395 ;  McCormick  v.  Littler,  85  111.  62,  28  Am.  Rep. 
610;  Beckwith  v.  Butler,  1  Wash.  (Va.)  224;  Carpenter  v.  Carpenter,  8  Bush 
(Ky.)  283;  Staples  v.  Wellington,  58  Me.  453;  Clark,  Cont.  266.  As  to  burden 
of  proof  in  such  cases,  see  cases  cited  in  Clark,  Cont.  266,  note  201. 

29  Curtis  V.  Brownell,  42  Mich.  165,  3  N.  W.  936;  Peaslee  v.  Bobbins,  3  Mete. 
(Mass.)  164;  Jenners  v.  Howard,  6  Blackf.  (Ind.)  240. 

80  Bond  V.  Bond,  7  Allen  (Mass.)  1 ;  Riggs  v.  American  Tract  Soc,  95  N.  T. 
503;  Dennett  v.  Dennett,  44  N.  H.  531,  84  Am.  Dec.  07;  Searle  v.  Galbraith, 
73  111.  269;  Alston  v.  Boyd,  6  Humph.  (Tenn.)  504;  Samuel  v.  Marshall,  3 
Leigh  (Va.)  567 ;  Boyce's  Adm'r  v.  Smith,  9  Grat.  (Va.)  704,  60  Am.  Dec  313 ; 
West  V.  Russell,  48  Mich.  74,  11  N.  W.  812. 

31  Boyce's  Adm'r  v.  Smith,  9  Grat.  (Va.)  704,  00  Am.  Dec.  313. 

8  2  Van  Deusen  v.  Sweet,  51  N.  Y.  378;  Rogers  v.  Blackwell,  49  Mich.  192, 
13  N.  W.  512;  In  re  Desilver's  Estate,  5  Rawle  (Pa.)  Ill,  28  Am.  Dec.  645; 
Farley  v.  Parker,  6  Or.  1U5,  25  Am.  Rep.  504;  Elder  v.  Schumacher,  18  Colo. 
433,  33  Pac.  175. 

33  Dexter  v.  Hall,  15  Wall.  9,  21  L.  Ed.  73 ;  Amos  v.  American  Trust  &  Sav- 
ings Bank,  125  HI.  App.  91,  decree  affirmed,  221  111.  lOO,  77  N.  E.  462;  Daily 
Telegraph  Newspaper  Co.  v.  McLaughlin,  73  Law  J.  P.  O.  95,  [1904]  App.  Gas. 
770,  91  Law  T.  233,  20  Times  Law  R.  674. 

3  4  Walker  v.  Winn,  142  Ala.  560,  39  South.  12,  110  Am.  St.  Rep.  50. 


§   230)  INSANE   PERSONS — CONTRACTS.  445 

held  to  be  simply  voidable.'"  As  a  general  rule,  almost  universally 
recognized,  all  his  contracts  other  than  such  as  the  law  holds  binding 
upon  him  are  not  void,  but  simply  voidable  at  his  option.^®  They  are 
binding  on  the  sane  party  if  the  insane  party  chooses  to  hold  him.*' 

Valid  Contracts — Quasi  Contracts. 

Some  contracts  are  binding  upon  an  insane  person.  As  in  the  case 
of  an  infant,  the  rule  that  a  person  may  avoid  a  contract  made  by  him 
while  insane  does  not  apply  to  contracts  created  by  law,  for  in  these 
contracts  the  obligation  is  imposed  by  law  without  regard  to  the  con- 
sent of  the  party  bound." 

Same — Necessaries. 

Nor  does  the  rule  apply  to  the  contracts  of  an  insane  person  for 
necessaries  furnished  to  him  or  his  wife,  or,  by  the  weight  of  authority, 
to  his  children.^®  The  rules  as  to  necessaries  are  substantially  the 
same  as  in  the  case  of  an  infant's  contracts  for  necessaries,  except,  it 
seems,  that,  unlike  an  infant,  an  insane  person  is  liable  for  labor  and 


88  Hovey  V.  Hobson,  53  Me.  451,  89  Am.  Dec.  705;  Ratllff  v.  Baltzer's  Adm'r, 
13  Idaho,  152,  89  Pac.  71 ;  De  Vries  v.  Crofoot,  148  Mich.  183,  111  N.  W.  775 ; 
Wait  V.  Maxwell,  5  Pick.  (Mass.)  217,  16  Am.  Dec.  391 ;  Wolcott  v.  Connecticut 
General  Life  Ins.  Co.,  137  Mich.  309,  100  N.  W.  569;  Key's  Lessee  v.  Davis, 
1  Md.  32 ;  Gibson  v.  Soper,  6  Gray  (Mass.)  279,  66  Am.  Dec.  414 ;  Allis  v.  Bil- 
lings, 6  Mete.  (Mass.)  415,  39  Am.  Dec.  744;  Evans  v.  Horan,  52  Md.  602; 
Burnham  v.  Kidwell,  113  111.  425 ;  Eaton  v.  Eaton,  37  N.  J.  Law,  108,  18  Am. 
Picp.  716 ;  Boyer  v.  Berryman,  123  Ind.  451,  24  N.  E.  249 ;  Somers  v.  Pumphrey, 
24  Ind.  234;  Breckenridge's  Heirs  v.  Ormsby,  1  J.  J.  Marsh.  (Ky.)  245, 
19  Am.  Dec.  71;  Allen  v.  Berryhill,  27  Iowa,  534,  1  Am.  Rep.  309. 

36  See  cases  cited  in  the  preceding  note.  Ajid  see,  also,  Carrier  v.  Sears, 
4  Allen  (Mass.)  330,  81  Am.  Dec  707;  Chew  v.  Bank,  14  Md.  318;  Burke  v. 
Allen,  29  N.  H.  106,  61  Am.  Dec.  642;  Arnold  v.  Iron  Works,  1  Gray  (Mass.) 
434;  Riley  v.  Carter,  76  Md.  581,  25  Atl.  667,  19  L.  R.  A.  489,  35  Am.  St. 
Rep.  443. 

37  Harmon  v.  Harmon  (O.  C.)  51  Fed.  113;  Allen  v.  Berryhill,  27  Iowa,  534, 
1  Am.  Rep.  309. 

38  Reando  v.  Misplay,  90  Mo.  251,  2  S.  W.  405,  59  Am.  Rep.  13. 

88  Read  V.  Legard,  6  Exch.  636;  State  Commission  in  Lunacy  v.  Eldridge 
(Cal.)  94  Pac.  597,  600 ;  Key  v.  Harris,  116  Teun.  101,  92  S.  W.  235 ;  Smith's 
Committee  v.  Forsythe,  90  S.  W.  1075,  28  Ky.  Law  Rep.  1034;  Ratliff  v. 
Baltzer's  Adm'r,  13  Idaho,  152,  89  Pac.  71;  La  Rue  v.  Gilkyson,  4  Pa.  375, 
45  Am.  Dec.  700;  Richardson  v.  Strong,  35  N.  C.  106,  55  Am.  Dec.  430;  Mc- 
Cormick  v.  Littler,  85  111.  62,  28  Am,  Rep.  610;  Van  Horn  v.  Hann,  39  N.  J. 
Law,  207 ;  Shaw  v.  Thompson,  16  Pick.  (Mass.)  198,  26  Am.  Dec.  655 ;  Sawyer 
V.  Lufkin,  56  Me.  308;  Sceva  v.  True,  53  N.  H.  627;  Clark,  Cont.  267. 


U6 


PERSONS   NON   COMPOTES  MENTIS  AND   ALIENS. 


(Ch.  15 


materials  furnished  for  the  necessary  preservation  of  his  estate. *''  In 
all  cases,  to  render  the  insane  person  liable,  the  credit  must  have  been 
given  to  him,  and  not  to  some  third  person.  If  it  is  otherwise,  no  con- 
tract will  be  implied.*^  The  fact  that  the  party  has  been  judicially 
declare^  insane,  and  placed  under  guardianship,  does  not  affect  the 
question  of  his  liability  for  what  are  in  fact  necessaries.*^  The  liabili- 
ty of  an  insane  person  for  necessaries,  like  the  liability  of  an  infant, 
is  not  a  strictly  contractual  obligation.  It  is  imposed  by  law,  and  is 
quasi  contractual.*^ 

Same — Ignorance  of  Insanity  and  Good  Faith  of  the  Other  Party. 

By  the  weight  of  actual  decision,  where  a  contract  with  an  insane 
person  has  been  executed  in  part,  and  the  other  party  cannot  be  placed 
in  statu  quo,  it  will  be  enforced,  unless  it  is  shown  that  he  did  not  act 
in  good  faith,  or  that  he  knew  of  the  other's  condition.  The  leading 
case  holding  this  doctrine  is  Molton  v.  Camroux,**  an  English  case. 
In  this  case  an  insane  person  had  purchased  annuities  of  a  society, 
paid  the  money,  and  died,  whereupon  his  administratrix  sued  the  so- 
ciety to  recover  back  the  money  paid  it,  on  the  ground  that  the  con- 
tract was  void.  The  jury  found  that  at  the  time  of  the  contract  the 
deceased  was  insane,  but  that  there  was  nothing  to  indicate  this  to  the 
society,  and  that  the  transaction  was  in  good  faith ;  and  it  was  held 
that  the  money  could  not  be  recovered.  "The  modern  cases  show," 
it  was  said,  "that  when  that  state  of  mind  was  unknown  to  the  other 
contracting  party,  and  no  advantage  was  taken  of  the  lunatic,  the  de- 
fense cannot  prevail,  especially  where  the  contract  is  not  merely  ex- 
ecutory, but  executed  in  whole  or  in  part,  and  the  parties  cannot  be 
restored  to  their  original  positions."  *'^    If  the  lunatic  has  received  no 


*o  Williams  v.  Wentworth,  5  Beav.  325. 

*i  Massachusetts  General  Hospital  v.  Fairbanks,  129  Mass.  78,  37  Am. 
Rep.  303;  Id.,  132  Mass.  414. 

4  2  McCrillis  v.  Bartlett,  8  N.  H.  569;  Sawyer  v.  Lufkin,  56  Me.  308;  Reando 
V.  Misplay,  90  Mo.  251,  2  S.  W.  405,  50  Am.  Rep.  13;  Fruitt  v.  Anderson,  12 
111.  App.  421.  One  who  furnishes  necesparies  to  a  lunatic  and  his  family  may 
recover  their  value,  even  though  he  knew  tlie  lunatic's  mental  condition. 
Smith's  Committee  v.  Forsythe,  90  S.  W.  1075,  28  Ky.  Law  Rep.  1034. 

43  Sceva  V.  True,  53  N.  H.  027 ;  Ratliff  v.  Baltzer's  Adm'r,  13  Idaho,  152, 
89  Pac.  71. 

44  2  Exch.  4S9;  4  Exch.  37. 

4B  See,  also,  Imperial  Loan  Co.  v.  Stone,  [1892]  1  Q.  B.  599;  Kent  v.  La 
Rue,  130  Iowa,  113,  113  N.  W.  547;  Eaton  v.  Ealou,  37  N.  J.  Law,  108,  18 
Am.  Rep.  710 ;  Mutual  Life  Ins.  Co.  v.  Hunt,  79  N.  Y.  541;  Ingraham  v.  Bald- 


I 


§    230)  INSANE   PERSONS — CONTRACTS.  447 

benefit  under  the  contract,  it  has  been  held  that  this  doctrine  does  not 
apply,  and  that  he  can  recover  what  he  has  parted  with,  notwithstand- 
ing the  other  party's  good  faith.*" 

Some  courts  have  refused  to  recognize  the  doctrine  of  Molton  v. 
Camroux,  but,  on  the  contrary,  hold  that,  even  though  a  contract  with 
an  insane  person  has  been  executed  in  whole  or  in  part,  it  may,  never- 
theless, be  avoided  by  the  insane  party,  though  it  was  entered  into  by 
the  other  party  in  perfect  good  faith,  and  in  ignorance  of  the  insanity, 
and  though  the  parties  cannot  be  placed  in  statu  quo.  In  Seavcr  v. 
Phelps,*^  for  instance,  it  was  held  by  the  Massachusetts  court  that,  in 
trover  for  a  note  pledged  to  the  defendant  by  the  plaintiff  while  in- 
sane, it  was  no  defense  that  the  defendant,  when  he  took  the  note,  did 
not  know  the  plaintiff  was  insane,  and  had  no  reason  to  suspect  it,  and 
did  not  practice  any  fraud  or  unfairness.  "The  fairness  of  the  defend- 
ant's conduct,"  it  was  said,  "cannot  supply  the  plaintiff's  want  of  ca- 
pacity." 

Insane  Persons  under  Guardianship. 

In  some  states  it  is  provided  by  statute,  and  in  others  it  is  held 
independently  of  any  statute,  that  where  a  person  has  been  judicially 

win,  9  N.  T.  45 ;  Shoulters  v.  Allen.  51  Mich.  529,  16  N.  W.  SSS ;  Scanlan  v. 
Ck)bb,  85  111.  298;  Burnham  v.  Kidwell,  113  111.  425;  McCormick  v.  Littler, 
85  111.  62,  28  Am.  Rep.  610;  Studabaker  v.  Fay  lor  (Ind.)  83  N.  E.  747;  Boyer 
V.  Berryman,  123  Ind.  451,  24  N.  E.  249;  Fay  v.  Burditt,  81  Ind.  433,  42  Am. 
Rep.  142 ;  Wilder  v.  Weakley's  Estate,  34  Ind.  181 ;  Northwestern  Mutual  Fire 
Ins.  Co.  V.  Blankenship,  94  Ind.  535,  48  Am.  Rep.  185;  Beats  v.  See,  10  Ba. 
56,  49  Am.  Dee.  573;  Lancaster  County  Nat.  Bank  v.  Moore,  78  Pa.  407,  21 
Am.  Rep.  24;  Lincoln  v.  Buckmaster,  32  Vt.  652;  Young  v.  Stevens,  48  N.  H. 
136,  2  Am.  Rep.  202,  97  Am.  Dec.  592;  Schaps  v.  Lehner,  54  Minn.  208,  55 
N.  W.  911 ;  Abbott  v.  Creal,  56  Iowa,  175,  9  N.  W.  115 ;  Behrens  v.  McKenzie, 
23  Iowa,  333,  92  Am.  Dec.  428;  Gribben  v.  Maxwell,  34  Kan.  8,  7  Pac.  584, 
55  Am.  Rep.  233;  Myers  v.  Knabe,  51  Kan.  720,  33  Pac.  602;  Matthiesseu 
&  Weichcrs  Refining  Co.  v.  McMahon's  Adm'r,  38  N.  J.  Law,  536;  Carr  v. 
Holliday,  21  N.  C.  344;  Riggan  v.  Green,  80  N.  C.  236,  30  Am.  Rep.  77.  Con- 
tracts of  a  lunatic,  founded  on  an  adequate  consideration,  of  which  the  lunatic 
has  had  the  benefit,  and  made  by  the  other  party  without  fraud  or  undue 
influence  and  in  good  faith,  in  ignorance  of  the  mental  condition  of  the 
lunatic,  and  before  any  inquisition  of  lunacy  has  been  had,  will  be  upheld 
where  the  parties  cannot  be  placed  in  statu  quo.  D.  M.  Smith's  Committee 
V.  Forsythe,  90  S.  W.  1075,  28  Ky.  Law  Rep.  1034. 

*6  Lincoln  v.  Buckmaster,  32  Vt.  658 ;  Van  Patton  v.  Beals,  46  Iowa,  63. 

47  11  Pick.  (Mass.)  304,  22  Am.  Dec.  372.  And  see  Anglo-Californian  Bank 
V.  Ames  (C.  C.)  27  Fed.  727 ;  Hovey  v.  Hobson,  53  Jle.  451,  89  Am.  Dec.  705 ; 
Fitzgerald  v.  Reed,  9  Smedes  &  M.  (Miss.)  94;  Sullivan  y.  Flynn,  20  D.  C.  396. 


448  PERSONS   NON   COMPOTES  MENTIS   AND   ALIENS.  (Ch.  15 

determined  to  be  insane,  under  a  regular  inquisition,  and  placed  under 
guardianship,  his  contracts  while  under  guardianship  are  absolutely 
void,  and  that  no  inquiry  can  be  made  into  the  question  whether  he 
was  in  fact  insane  or  not.*^  In  other  states  it  has  been  held  that  an 
adjudication  of  lunacy  and  guardianship  only  raise  a  presumption  of 
incapacity  to  contract,  which  may  be  rebutted  by  clear  proof  of  capa- 
city.*® To  bring  a  case  within  the  doctrine  first  stated  above,  there 
must  not  only  have  been  an  adjudication  of  lunacy,  but  the  lunatic 
must  be  actually  under  guardianship  when  the  contract  is  made.  For 
instance,  it  has  been  held  that  if  the  guardian  is  discharged  as  being 
an  unsuitable  person,  and  no  other  guardian  is  appointed,  the  adju- 
dication is  not  conclusive  as  to  incapacity  after  the  guardian's  dis- 
charge."^^  As  has  been  stated,  the  fact  that  an  insane  person  is  under 
guardianship  does  not  affect  his  liability  for  necessaries.^^ 

SAME— RATIFICATION   AND   AVOIDANCE    OF   CONTRACTS. 

231.  The   voidable   contract   of   an  insane   person   may  be  ratified   or 

disaifirmed  by  himself  xtrlien  sane,  or  by  bis  gnardian  during 
insanity,  or  by  bis  personal  representatives  or  beirs  after  bis 
deatb. 

232.  By  tbe  xreigbt  of  authority,  the  right  to  disaffirm  is  personal  to 

the  insane  party  or  his  representatives,  and  does  not  extend 
to  the  other  party  or  to  strangers. 

233.  In  a  few  jurisdictions  the  consideration  received  by  the  insane 

person  need  not  be  returned  as  a  condition  precedent  to  avoid- 
ance if  be  is  unable  to  return  it,  but  the  iveight  of  authority 
is  the  other  way.  In  all  jurisdictions  it  must  be  returned  if  it 
can  be. 

234.  In  most  jurisdictions  the  right  of  disaffirmance  can  be  exercised 

against  bona  fide  purchasers  of  land  or  goods  sold  by  the  in- 
sane person,  or  of  negotiable  instruments  executed  by  him. 

*8  Wait  V.  Maxwell,  5  Pick.  (Mass.)  217,  16  Am.  Dec.  391 ;  Leonard  v. 
Leonard,  14  Pick.  (Mass.)  280;  Rannells  v.  Gerner,  80  Mo.  474;  Fitzhugh  v. 
Wilcox,  12  Barb.  (N.  Y.)  235;  Bradbury  v.  Place  (Me.)  10  Atl.  461;  Mohr  v. 
Tulip,  40  Wis.  66;  Knox  v.  Haug,  48  Minn.  58,  50  N.  W.  934;  Griswold  v. 
Butler,  3  Conn.  227. 

4  9  See  Mott  v.  Mott,  49  N.  J.  Eq.  192,  22  Atl.  997;  Hart  v.  Deamer,  6  Wend. 
(N.  Y.)  497;  Parker  v.  Davis,  53  N.  C.  460;  Hopson  v.  Boyd,  6  B.  Mon.  (Ky.) 
296;  Snook  v.  Watts,  11  Beav.  105;  In  re  Gangwere's  Estate,  14  Pa.  417, 
53  Am.  Dec.  554. 

6  0  willwerth  v.  Leonard,  156  Mass.  277,  31  N.  E.  299. 

61  Ante,  p.   445. 


§   231-234)  INSANE   PERSONS — CONTRACTS.  449 

The  voidable  contracts  of  a  person  non  compos  mentis  may  be  rati- 
fied or  disaffirmed  by  him  when  he  becomes  sane,  or  during  a  lucid  in- 
terval ;  ^^  or,  during  the  continuance  of  his  infirmity,  by  his  committee 
or  guardian;  ^^  or,  after  his  death,  by  his  personal  representative  ^^  or 
his  heirs.'^''  The  privilege  is  personal  to  the  insane  person,  or  those 
who  thus  represent  him;  and  neither  the  other  party  to  the  contract 
nor  third  persons  can  avoid  it.'®  Ratification  or  disaffirmance  need 
not  be  in  express  words,  but  may  be  by  conduct,  as  in  the  case  of  rati- 
fication or  disaffirmance  by  a  person  of  a  contract  made  during  in- 
fancy/' 

Return  of  Consideration  on  Avoidance. 

In  those  jurisdictions  where  an  insane  person's  contract  is  voida- 
ble, whether  it  is  executed  or  not,  and  whether  or  not  the  other  party 
acted  in  good  faith  and  in  ignorance  of  his  mental  infirmity,  a  person 
is  not  required  to  restore,  or  offer  to  restore,  the  consideration  receiv- 
ed by  him  as  a  condition  precedent  to  the  avoidance  of  a  deed  or  other 
contract  made  by  him  while  insane,  though  retention  and  use  of  the 
consideration  after  restoration  to  sound  mind  may,  as  in  the  case  of 
infants,  furnish  evidence  of  ratification  of  the  contract.  One  of  the 
obvious  grounds,  it  was  said  by  the  Massachusetts  court,  on  which  the 
deed  of  an  insane  man  or  an  infant  is  held  voidable,  is  not  merely  the 
incapacity  to  make  a  valid  sale,  but  the  incapacity  prudently  to  manage 
and  dispose  of  the  proceeds  of  the  sale;    and  the  same  incapacity 

62  Allis  V.  Billings,  6  Mete.  (Mass.)  416,  39  Am.  Dec.  744;  Gibson  v.  Soper, 
6  Gray  (Mass.)  279,  66  Am.  Dec.  414;  Arnold  v.  Iron  Worlcs,  1  Gray  (Mass.) 
434;  Turner  v.  Rusk,  53  Md.  65;  Spicer  v.  Holbrook,  96  S.  W.  571,  29  Ky. 
Law  Rep.   865. 

53  Moore  v.  Hershey,  90  Pa.  196;  Halley  v.  Troester,  72  Mo.  73;  McClain 
V.  Davis,  77  Ind.  419. 

5  4  Beverley's  Case,  4  Coke,  123b;  Campbell  v.  Kuhn,  45  Mich.  513,  8  N.  W. 
523,  40  Am.  Rep.  479 ;  Hovey  v.  Hobson,  53  Me.  451,  89  Am.  Dec.  705 ;  Scbuff 
V.  Ransom,  79  Ind.  458. 

55  Allis  V.  Billings,  6  Mete.  (Mass.)  415,  39  Am.  Dec.  744;  Schuff  v.  Ransom, 
79  Ind.  458. 

5  6  Carrier  v.  Sears,  4  Allen  (Mass.)  336,  81  Am.  Dec.  707;  Allen  v.  Berry- 
hill,  27  lovpa,  534,  1  Am.  Rep.  309 ;  ante,  p.  442.  Contra,  Burke  v.  Allen,  29 
N.  H.  106,  61  Am.  Dec.  642.  Sureties  are  liable  on  a  note  executed  by  an 
insane  person.     Lee  v.  Yandell,  69  Tex.  34,  6  S.  W.  065. 

57  Gibson  v.  Soper,  6  Gray  (.^lass.)  283,  66  Am.  Dec.  414;  Arnold  v.  Iron 
Works,  1  Gray  (Mass.)  434.  Disaffirn)ance  by  action  to  avoid.  Hull  v.  Louth, 
109  Ind.  315,  10  N.  B.  270,  58  Am.  Rep.  405;  Ashmead  V.  Reynolds,  127  Ind. 
441,  26  N.  E.  80. 

TIFF.P.&  D.Rel.(2d  Ed.)— 29 


450  PERSONS   NON   COMPOTES  MENTIS  AND   ALIENS.  (Ch.  15 

which  makes  the  deed  voidable  may  have  wasted  the  price,  and  ren- 
dered the  restoration  of  the  consideration  impossible.  "The  law  makes 
this  very  incapacity  of  parties  their  shield.  In  their  weakness  they 
find  protection.  It  will  not  suffer  those  of  mature  age  and  sound  mind 
to  profit  by  that  weakness.  It  binds  the  strong  while  it  protects  the 
weak.  It  holds  the  adult  to  the  bargain  which  the  infant  may  avoid ; 
the  sane  to  the  obligation  from  which  the  insane  may  be  loosed.  It 
does  not  mean  to  put  them  on  an  equality.  On  the  other  hand,  it  in- 
tends that  he  who  deals  with  infants  or  insane  persons  shall  do  it  at 
his  peril.  *  *  *  jf  ^^g  j^w  required  restoration  of  the  price  as  a 
condition  precedent  to  the  recovery  of  the  estate,  that  would  be  done 
indirectly  which  the  law  does  not  permit  to  be  done  directly,  and  the 
great  purpose  of  the  law  in  avoiding  such  contracts — the  protection  of 
those  who  cannot  protect  themselves — defeated."  ■** 

As  we  have  already  seen,  however,  most  courts  do  not  allow  an  in- 
sane person  to  avoid  his  contracts  at  all  where  the  other  party  acted 
in  good  faith,  and  in  ignorance  of  his  insanity,  and  cannot  be  placed 
in  statu  quo.^* 

Avoidance  as  Against  Third  Persons. 

The  fact  that  third  persons  have  acquired  an  interest  under  the  con- 
tract of  a  person  non  compos  mentis,  in  good  faith,  for  value,  and  with- 
out notice  of  his  infirmity,  cannot  defeat  his  right  to  avoid  the  con- 
tract.®" This  rule  applies  to  deeds  ®^  and  negotiable  instruments  *^  as 
well  as  to  other  contracts,  and  it  applies  whether  the  contract  be  re- 
garded as  void  or  merely  voidable.  To  protect  bona  fide  purchasers 
in  such  cases  would  be  to  withdraw  protection  from  the  insane  person. 

08  Gibson  v.  Soper,  6  Gray  (Mass.)  279,  66  Am.  Dec.  414;  Hovey  v.  Hobson, 
53  Me.  453,  89  Am.  Dec.  705. 

6 »  Ante,  p.  446. 

eo  Hovey  v.  Hobson,  53  Me.  451,  89  Am.  Dec.  705;  Hull  v.  Louth,  109  Ind. 
315,  10  N.  E.  270,  58  Am.  Rep.  405;  Long  v.  Fox,  100  lU.  43;  Rogers  v. 
Blackwell,  49  Mich.  192.  13  N.  W.  512. 

61  Rogers  v.  Blackwell,  49  Mich.  192,  13  N.  W.  512.  In  North  Carolina  it 
is  held  that  the  deed  of  a  lunatic,  duly  recorded,  cannot  be  avoided  as  against 
bona  fide  purchasers.  Odom  v.  Riddick,  104  N.  O.  515,  10  S.  E.  609,  7  L.  R. 
A.  118,  17  Am.  St.  Rep.  686. 

6  2  Anglo-Calif ornian  Bank  v.  Ames  (C.  C.)  27  Fed.  727;  Wirebach's  Ex'r  v. 
Bank,  97  Pa.  543,  39  Am.  Rep.  821 ;  McClain  v.  Davis,  77  Ind-  419. 


§    235)  INSANE   PERSONS — TORTS.  451 

LIABILITY   OF   INSANE  PERSON   FOR   TORTS. 

235.  An  insane  person  is  liable,  to  tlie  extent  of  the  actual  dam- 
age, for  torts  involving  no  mental  element ;  but  lie  is  not  liable 
for  torts  of  ivliicb  malice  is  an  essential  element;  nor  is  be 
liable  for  exemplary  damages. 

The  general  rule  is  that  an  insane  person  is  liable  for  his  torts, 
which  involve  no  mental  element,  to  the  extent  of  the  actual  damage.®^ 
He  is  liable,  for  instance,  in  tort  for  causing  the  death  of  another,^* 
for  trespass  on  land,®^  for  conversion, ^^  for  assault  and  battery, ^'^  for 
false  imprisonment,®®  for  negligence.®^  In  a  late  Illinois  case  it  was 
said:  "There  certainly  can  be  nothing  wrong  or  unjust  in  a  verdict 
which  merely  gives  compensation  for  the  actual  loss  resulting  from  an 
injury  inflicted  by  a  lunatic.  He  has  properly  no  will.  His  acts  lack 
the  element  of  intent  or  intention.  Hence  it  would  seem  to  follow  that 
the  only  proper  measure  of  damages  in  an  action  against  him  for  a 
wrong  is  the  mere  compensation  of  the  party  injured.  Punishment  is 
not  the  object  of  the  law  when  persons  unsound  in  mind  are  the 
wrongdoers.  There  is,  to  be  sure,  an  appearance  of  hardship  in  com- 
pelling one  to  respond  for  that  which  he  is  unable  to  avoid,  for  want  of 
the  control  of  reason.  But  the  question  of  liability  in  these  cases  is 
one  of  public  policy.  If  an  insane  person  is  not  held  liable  for  his 
torts,  those  interested  in  his  estate,  as  relatives  or  otherwise,  might  not 
have  a  sufficient  motive  to  so  take  care  of  him  as  to  deprive  him  of 

6  3  1  Jag.  Torts,  154;  Weaver  v.  Ward,  Hob.  134;  Mclntyre  v.  Sholty,  121 
111.  660,  13  N.  E.  239,  2  Am.  St.  Rep.  140;  Morse  v.  Crawford,  17  Vt.  499,  44 
Am.  Dee.  349;  Behrens  v.  McKeuzie,  23  Iowa,  333,  92  Am.  Dec.  428;  Cross 
V.  Kent,  32  Md.  581;  and  eases  hereafter  cited. 

64  :McIntyre  v.  Sbolty,  121  111.  G60,  13  N.  E.  239,  2  Am.  St  Rep.  140;  Jewell 
V.  Colby,  66  N.  H.  399,  24  Atl.  902. 

6  5  Amick  V.  O'Hara,  6  Blackf.  (Ind.)  258. 

«6  Morse  v.  Crawford,  17  Vt  499,  44  Am.  Dec.  349. 

67  Taggard  v.  Innes,  12  U.  G.  C.  P.  77;  Feld  v.  Borodofskl,  87  Miss.  727,  40 
South.  816. 

6  8  Krom  v.  Schoonmaker,  3  Barb.  (N.  Y.)  647.  ^ 

6  9  Williams  v.  Hays,  143  N.  Y.  442,  38  N.  E.  449,  26  L.  R.  A.  153,  42  Am. 
St  Rep.  743;  Morain  v.  Devlin,  132  Mass.  87,  42  Am.  Rep.  423;  Behrens  v. 
McKenzie,  23  Iowa,  333,  92  Am.  Dec.  428.  An  insane  person  cannot,  however, 
be  held  liable  for  the  negligence  of  his  guardian  or  committee  in  the  care  of 
the  incompetent's  property.  Reams  v.  Taylor,  31  Utah,  288,  87  Pac.  1089,  120 
Am.  St  Rep.  930;  Ward  v.  Rogers,  51  Misc.  Rep.  299,  100  N.  Y.  Supp.  1058. 


452  PERSONS   NON   COMPOTES  MENTIS  AND   ALIENS.  (Ch.  15 

Opportunities  for  inflicting  injuries  on  others.  There  is  more  injus- 
tice in  denying  to  the  injured  party  the  recovery  of  damages  for  the 
wrong  suffered  by  him  than  there  is  in  calHng  upon  the  relatives  or 
friends  of  the  lunatic  to  pay  the  expense  of  his  confinement,  if  he  has 
an  estate  ample  enough  for  that  purpose.  The  liability  of  lunatics  for 
their  torts  tends  to  secure  a  more  efficient  custody  and  guardianship 
of  their  persons.  Again,  if  parties  can  escape  the  consequences  of  their 
injurious  acts  upon  the  plea  of  lunacy,  there  will  be  a  strong  tempta- 
tion to  simulate  insanity,  with  a  view  of  masking  the  malice  and  re- 
venge of  an  evil  heart."  ""^ 

An  insane  person,  being  incapable  of  entertaining  malice,  cannot 
commit  a  tort  in  which  malice  is  an  essential  element,  like  malicious 
prosecution,  libel,  and  slander.'^ ^  As  was  said  by  the  Indiana  court: 
"Slander  must  be  malicious.  An  idiot  or  lunatic,  no  matter  from  what 
cause  he  became  so,  cannot  be  guilty  of  malice.  He  may  indulge  the 
anger  of  the  brute,  but  not  the  malice  of  one  who  'knows  better.'  "  ''^ 

In  no  case  can  more  than  actual  damages  be  recovered  from  a  luna- 
tic for  his  torts.  Exemplary  damages  being  allowed  on  the  ground  of 
malice  or  evil  intent,  and  an  insane  person  being  incapable  of  malice, 
they  can  never  be  recovered.'^' 

RESPONSIBILITY  OF  INSANE  PERSON  FOR  CRIME. 

236.  Since  a  criminal  intent  is   an  essential  element   of  every  crime, 

no  person  is  criminally  responsible  for  an  act  if,  at  the  time 
it  is  committed,  he  is  so  insane  as  to  be  incapable  of  enter> 
taining  such,   an   intent. 

237.  Insanity  may  have  the  following  effects: 

(a)  It  may  render  a  person  incapable  of  determining  between  right 

and  wrong,  in  w^hich  case  there  is   no  criminal  responsibility. 

(b)  It   may  render  him   incapable    of   knowing   what   he   is   doing   in 

the  particular  instance  only,  as  in  the  case  of  insane  delusions 
or  partial  insanity,  in  v^hich  case  his  responsibility  depends 
upon  the  facts  as  they  appear  to  him. 

(c)  It   may    deprive   him    of   freedom   of   w^ill,    as   in   the    case    of   ir- 

resistible impulses,  sphere  the   party   knoivs   w^hat  he  is   doing, 

TO  Mclntyre  v.  Sholty,  121  111.  660,  13  N.  E.  239,  2  Am.  St  Rep.  140. 

71  1  Jag.  Torts,  157;  Gates  v.  Meredith,  7  lud.  440;  Bryant  v.  Jackson,  6 
Humph.  (Tenn.)  199 ;  Horuer  v.  Mai-shall's  Adm'x,  5  Munf.  (Va.)  466. 

7  2  Gates  V.  Meredith,  7  Ind.  440. 

73  1  Jag.  Torts,  158;  Avery  v.  Wilson  (C.  C)  20  Fed.  856;  Krom  v.  Schoon- 
maker,  3  Barb.  (N.  Y.)  647. 


§§   236-239)  INSANE   PERSONS — CRIMES.  453 

but  is  irresistibly  driven  to  do  it.  Perhaps  most  courts  refuse 
to  recognize  sncb  a  phase  of  insanity  as  a  ground  of  exemption; 
but,  by  the  better  opinion,  such  an  impulse,  if  showrn  to  have 
been  caused  by  disease  of  the  mind,  does  exempt  the  victim 
from   responsibility. 

238.  Moral  or  emotional  insanity,  as  distinguished  from  mental,  does 

not  exempt  one  from  criminal  responsibility. 

239.  A  person     cannot  be  tried  if  he  is  insane,  though  he  may  have 

been  sane  wrhen  he  committed  the  act,  as  he  is  deemed  in- 
capable of  conducting  his  defense.  Nor  can  an  insane  person 
be  sentenced  or  punished,  though  he  may  have  been  convicted 
TP^hile  sane. 

The  leading  case  on  the  subject  of  insanity  as  a  defense  in  criminal 
prosecutions  is  McNaghten's  Case,  which  arose  in  England  in  1843.'^* 
After  the  defendant  had  been  acquitted  in  that  case  on  the  ground  of 
insanity,  the  question  came  up  on  debate  in  the  House  of  Lords,  and 
the  opinion  of  the  judges  was  asked.  They  answered,  among  other 
things,  that  jurors  should  be  told  in  all  cases  that  every  man  is  to  be 
presumed  to  be  sane,  and  to  possess  a  sufficient  degree  of  reason  to  be 
responsible  for  his  crimes,  until  the  contrary  be  proved  to  their  satis- 
faction; and  that,  to  establish  a  defense  on  the  ground  of  insanity,  it 
must  be  clearly  proved  (1)  that,  at  the  tirne  the  act  was  committed,  the 
accused  was  laboring  under  such  a  defect  cfl  reason,  from  disease  of 
the  mind,  as  not  to  know  the  nature  and  quality  of  the  act  he  was  do- 
ing, or,  if  he  did  know  it,  that  he  did  not  know  he  was  doing  what  was 
wrong ;  or  (2)  that  if  a  person  is  laboring  under  a  partial  delusion,  not 
being  in  other  respects  insane,  he  must  be  considered  in  the  same  sit- 
uation as  to  responsibility  as  if  the  facts  in  respect  to  which  the  de- 
lusion exists  were  real;  that  if,  for  example,  a  person,  under  the  in- 
fluence of  his  delusion,  supposes  another  man  to  be  in  the  act  of  at- 
tempting to  take  his  life,  and  he  kills  that  man,  as  he  supposes,  in 
self-defense,  he  would  be  exempt  from  punishment,  but  if  his  delusion 
was  that  the  deceased  had  inflicted  a  serious  injury  to  his  character 
and  fortune,  and  he  killed  him  in  revenge  for  such  supposed  injury, 
he  would  be  liable  to  punishment. 

Inability  to  Distinguish  between  Right  and  Wrong. 

This  answer  of  the  judges,  it  will  be  noticed,  holds  that  a  person  is 
not  criminally  responsible  'for  his  act  if  he  was  so  insane  that  he  did 
not  know  the  nature  and  quality  of  the  act,  or  if  he  did  not  know  it 

1*  10  Clark  &  F.  200. 


454  PERSONS  NON   COMPOTES   MENTIS   AND   ALIENS.  (Ch.  15 

was  wrong.  This  rule  is  universally  recognized.^"  The  incapacity  in 
such  cases  may  arise  from  idiocy,  as  well  as  from  mania.^'  The  de- 
fect of  reason  need  not  be  general  nor  permanent.  It  is  enough  if  the 
party  did  not  know  that  the  particular  act  was  wrong  at  the  time  he 
committed  it,  though  he  may  have  had  his  reason  shortly  before  the 
act,  and  may  have  recovered  it  afterwards,  and  though  he  may  have 
been  able  to  distinguish  between  right  and  wrong  as  to  other  acts. 

Insane  Delusions. 

The  answer  of  the  judges  in  McNaghten's  Case  on  the  question  of 
insane  delusions  has  been  since  recognized  as  the  law  in  this  country, 
as  well  as  in  England.  If,  when  a  man  commits  an  act,  he  is  laboring 
under  an  insane  delusion  as  to  that  particular  act,  not  being  other- 
wise insane,  his  responsibility  depends  upon  the  facts  as  they  seemed 
to  him."  If  a  man  kills  another  under  the  insane  delusion  that  the 
other  is  attempting  to  take  his  life,  he  is  excused.  But,  where  a  man 
killed  another  under  the  insane  delusion  that  the  latter  was  trying  to 
marry  his  mother,  he  was  held  responsible  for  the  murder,  since  this 
fact,  even  if  it  really  existed,  would  be  no  defense. ^^  So,  where  a 
convict  killed  a  fellow  convict,  it  was  rightly  held,  on  the  same  prin- 
ciple, that  a  delusion  that  the  deceased  had  divulged  a  plan  of  escape 
was  no  defense.''* 

There  must  have  been  an  actual  delusion,  and  the  act  must  have 
been  immediately  connected  with  it.  If  a  person  knows  all  the  facts 
as  to  which  he  acts,  he  is  not  exempt,  though  he  may  have  had  insane 
delusions  as  to  other  facts.*" 


TB  Flanagan  v.  People,  52  N.  Y.  467,  11  Am.  Rep.  731;  Dunn  v.  People,  109 
111.  G35;  Ilornish  v.  People,  142  111.  G20,  32  N.  E.  677,  18  L.  R.  A.  237;  Clark, 
Cr.  Cas.  53,  54,  where  cases  are  collected 

Ta  C!om.  v.  Heath,  11  Gray  (Mass.)  303;  Ortwein  v.  Ck)m.,  76  Pa.  414,  18 
Am.  Rep.  420. 

T 7  McNaghten's  Case,  10  Clark  &  F,  200;  Hadfleld's  Case,  27  How.  State 
Tr.  1282;  Com.  v.  Rogers,  7  Mete.  (Mass.)  500,  41  Am.  Dec.  458;  People  v. 
Pine,  2  Rarb.  (N.  Y.)  571;  State  v,  Lewis,  20  Nev.  333,  22  Pac.  241;  Thur- 
man  v.  State,  32  Neb.  224,  49  N.  W.  338;  Clark,  Cr.  Law,  54,  55,  and  cases 
there  cited. 

7  8  Boiling  V.  State,  54  Ark.  588,  16  S.  W.  658. 

7  9  People  V.  Taylor,  138  N.  Y.  398,  34  N.  E.  275. 

80  Freeman  v.  People,  4  Denio  (N.  Y.)  9,  47  Am.  Dec.  216;  Clark,  Cr.  Law, 
55,  and  cases  there  cited. 


§§   236-239)  INSANE   PERSONS — CRIMES.  455 

Irresistible  Impulse. 

Where  a  person,  from  disease  of  the  mind,  and  not  from  mere  moral 
depravity  and  long  indulgence  in  vice,  is  incapable  of  restraining  him- 
self, many  of  the  courts  hold  that  he  is  exempt  from  responsibility, 
though  he  may  have  known  that  he  was  doing  what  was  wrong.  In 
other  words,  it  is  held  that  a  person  may  know  that  he  is  doing  wrong 
when  he  commits  an  act,  but,  by  reason  of  the  duress  of  a  mental  dis- 
ease, he  may  have  lost  the  power  to  choose  between  the  right  and 
the  wrong,  and  to  avoid  doing  the  act,  and  that  when  this  is  shown  to 
be  the  case,  he  is  not  criminally  responsible.®^  Most  of  the  courts, 
perhaps,  have  refused  to  recognize  any  such  ground  of  exemption,  and 
limit  the  test  of  responsibility  to  ability  to  distinguish  between  right 
and  wrong.®''  If  such  a  condition  can  exist — and  the  doctors  say  that 
it  does — it  ought  to  exempt  from  responsibility  as  fully  as  any  other 
kind  of  insanity.  Great  care  should  be  taken  in  recognizing  such  a 
ground  of  exemption;  and  it  should  be  clear  that  the  irresistible  im- 
pulse is  due  to  disease  of  the  mind,  and  not  to  moral  depravity. 

Moral  and  Emotional  Insanity. 

A  perverted  condition  of  the  moral  system  is  sometimes  spoken  of 
as  "moral  insanity."  It  is  never  a  ground  of  exemption  from  crim- 
inal responsibility.  Though,  from  low  associations  and  constant  in- 
dulgence in  vice,  a  man's  moral  system  has  become  so  morbid,  and 
his  passions  so  uncontrollable,  that  his  conscience  or  sense  of  right 
and  wrong  will  not  restrain  him,  he  is,  nevertheless,  responsible  for 
his  acts,  if  his  mind  is  sound. ®^  So,  "emotional  insanity,"  as  it  is  call- 
ed, or  temporary  passion,  arising  from  excitement  or  anger,  and  not 
from  mental  disease,  is  no  defense.®* 

81  Clark,  Cr.  Law,  56,  57,  and  cases  there  cited;  Parsons  v.  State,  SI  Ala. 
577,  2  South.  854,  GO  Am.  Rep.  193;  Com.  v.  Rogers,  7  Mete.  (Mass.)  500,  4] 
Am,  Dec.  458;  People  v.  Finley,  38  Mich.  482;  State  v.  Jones,  50  N.  H.  369,  9 
Am.  Rep.  242 ;  Hopps  v.  People,  31  111.  385,  83  Am.  Dec.  231 ;  Dacey  v.  People, 
116  111.  555,  6  N.  E.  165. 

82  Clark,  Cr.  Law,  56,  and  cases  there  cited;  Reg.  v.  Stokes,  3  Car.  &  K. 
185;  Flanagan  v.  People,  52  N.  Y.  467,  11  Am.  Rep.  731;  State  v.  Harrison, 
36  W.  Va.  729,  15  S.  E.  982,  18  L.  R.  A.  224;  State  v.  Alexander,  30  S.  C. 
74,  8  S.  E.  440,  14  Am.  St.  Rep.  879. 

83  Clark,  Cr.  Law,  57,  58,  and  cases  there  cited ;  Flanagan  v.  People,  52 
N.  Y.  467,  11  Am.  Rep.  731;  People  v.  Finley,  38  Mich.  482;  Leache  v.  State, 
22  Tex.  App.  279,  3  S.  W.  539,  58  Am.  Rep.  638.  But  see  Scott  v.  Com.,  4 
Mete.  (Ky.)  227,  S3  Am.  Dec.  461. 

84  Clark,  Cr.  Law,  58,  and  cases  there  cited ;  People  v.  Mortimer,  48  Mich. 
37,  11  N.  W.  776;  People  v.  Foy,  138  N.  Y.  664,  34  N.  E.  396. 


456  PERSONS  NON   COMPOTES   MENTIS  AND   ALIENS.  (Ch.  15 

Uisanity  after  Commission  of  Crime. 

If  a  person  becomes  insane  after  he  has  committed  a  crime,  this 
does  not  render  him  any  the  less  guilty.  But  he  cannot  be  arraigned 
and  put  upon  his  trial  while  he  is  insane ;  and  if  he  becomes  insane 
after  he  has  been  arraigned  but  before  judgment  the  trial  must  end.^' 
The  reason  of  this  is  that  an  insane  person  cannot  properly  defend  him- 
self. So,  if  he  becomes  insane  after  a  conviction  and  sentence,  he  can- 
not be  punished.^®  Such  insanity,  however,  does  not  prevent  his  be- 
ing tried  and  punished  if  he  subsequently  becomes  sane. 


CAPACITY  TO  MAKE  A  WILIi. 

240.  A  person  \srh.o  is  of  nnsonnd  mind  to  snoli  an  extent  as  to  be  in- 

capable of  comprebending  tbe  condition  of  bis  property  and 
bis  relations  to  tbe  persons  xsrlio  are  or  migbt  be  tbe  objects 
of  bis  bounty,  and  of  collecting  in  bis  mind,  vvitbont  prompt- 
ing, tbe  elements  of  tbe  business  to  be  transacted,  and  to  bold 
tbem  tbere  until  tbeir  relation  to  eacb  otber  can  be  perceived, 
and  a  rational  judgment  in  respect  tbereto  formed,  is  inca- 
pable of  making  a  -nrill. 

241.  A  person   under   guardiansbip   is   prima   facie   Tiranting  in  testa- 

mentary capacity,  but  bis  w^ill  is  valid  if  it  be  sbow^n  tbat  be 
•was  in  fact  of  sound  mind. 

To  be  capable  of  making  a  valid  will,  a  person  must  be  of  sound 
mind.  Blackstone  says  that  "mad  men,  or  otherwise  non  compotes, 
idiots  or  natural  fools,  persons  grown  childish  by  reason  of  old  age  or 
distemper,  such  as  have  their  senses  besotted  with  drunkenness,  all 
these  are  incapable,  by  reason  of  mental  disability,  to  make  any  will 
so  long  as  such  disability  lasts."  ®^  Where  it  is  shown  that  a  testa- 
tor was  an  idiot  or  totally  insane,  there  can  be  no  difficulty  in  declaring 
the  will  void.  The  question  of  testamentary  capacity,  however,  is  oft- 
en very  difficult,  where  it  is  sought  to  show  partial  insanity  or  insane 
delusions,  or  to  show  a  slight  degree  of  mental  disorder. 

The  degree  of  mental  capacity  has  been  variously  stated.  In  a 
New  York  case  it  was  said:  "The  testator  should  be  capable  of  com- 
prehending the  condition  of  his  property,  and  his  relations  to  the  per- 

815  In  re  Wright,  74  Kan.  406,  89  Pac.  678;  Clark,  Cr.  Proc.  427,  428,  and 
cases  there  cited. 

86  State  V.  Snell,  46  Wash.  327,  89  Pac.  931,  9  L   R,  A.  (N.  S.)  1191. 

87  2  Bl.  Comm.  497. 


§§   240-241)  INSANE    PERSONS — WILLS.  457 

sons  who  are  or  might  have  been  the  objects  cfl  his  bounty.  He  should 
be  able  to  collect  in  his  mind,  without  prompting,  the  elements  of  his 
business  to  be  transacted,  and  hold  them  there  until  their  relations  to 
each  other  can  be  perceived,  and  a  rational  judgment  in  respect  there- 
to be  formed."  **  And  in  a  Pennsylvania  case  it  was  said :  "A  man 
of  sound  mind  and  disposing  memory  is  one  who  has  a  full  and  intel- 
ligent knowledge  of  the  act  he  is  engaged  in,  a  full  knowledge  of  the 
property  he  possesses,  an  intelligent  perception  and  understanding  of 
the  disposition  he  desires  to  make  of  it,  and  of  the  persons  and  objects 
he  desires  shall  be  the  recipients  of  his  bounty.  It  is  not  necessary 
that  he  collect  all  these  in  one  review.  If  he  understands,  in  detail, 
all  that  he  is  about,  and  chooses  with  understanding  and  reason  be- 
tween one  disposition  and  another,  it  is  sufficient  for  the  making  of  a 
will.  If,  from  any  cause,  he  is  so  enfeebled  in  mind  as  to  be  incapable 
of  knowing  the  property  he  possesses,  of  appreciating  the  effect  of  any 
disposition  made  by  him  of  it,  and  of  understanding  to  whom  he  in- 
tends to  bequeath  it,  he  is  without  the  requisite  testamentary  capac- 
ity.«» 

A  man  is  presumed  to  have  been  sane  until  the  contrary  is  proved. 
Therefore,  where  a  will  is  proved,  and  is  objected  to  on  the  ground  of 
want  of  mental  capacity,  the  burden  of  proof  is  on  the  contestant.®" 
But,  when  settled  insanity  is  proved  to  have  existed  prior  to  the  date 
of  the  will,  its  continuance  will  be  presumed,  and  the  burden  is  on  the 
proponent  to  show  that  the  will  was  made  in  a  lucid  interval.®^ 

If  the  testator,  at  the  time  of  making  his  will,  was  laboring  under  an 
insane  delusion  as  to  the  natural  objects  of  his  bounty,  which  affect- 
ed its  provisions,  it  will  be  held  invalid.®^     Thus,  a  will  disinheriting 


8  8  Van  Guysling  v.  Van  Kuren,  35  N.  Y.  70.  And  see  Converse's  Ex'r  v. 
Converse,  21  Vt.  168,  52  Am.  Dec.  58;  American  Bible  Soc.  v.  Price,  115  III. 
623,  5  N.  E.  126 ;  In  re  Blakely's  Will,  48  Wis.  294,  4  N.  W.  337 ;  Harrison  v. 
Rowan,  3  Wash.  C.  C.  580,  Fed.  Cas.  No.  6,141 ;  Abb.  Desc,  Wills  &  Adm.  227. 

8  9  Wilson  V.  Mitchell,  101  Pa.  495.  And  see  Shaver  v.  McCarthy,  110  Pa. 
339,  5  Atl.  614. 

80  Brooks  V.  Barrett,  7  Pick.  (Mass.)  94. 

81  Attorney  General  v.  Parnther,  3  Brown,  Ch.  443.  "Lunacy  being  once 
established,  the  burden  is  on  the  party  claiming  through  some  act  of  the 
lunatic  to  show  that  it  was  done  in  a  lucid  interval ;  and,  a  return  to  insanity 
being  proved,  the  burden  is  upon  the  party  claiming  a  relapse  into  insanity." 
Wright  V.  Jackson,  59  Wis.  569,  18  N.  W.  486. 

92  American  Seamen's  Friend  Soc.  v.  Hopper,  33  N.  Y.  619.  And  see  Dew 
▼.  Clarke,  5  Russ.  163;  Stanton  v.  Wetherwax,  16  Barb.  (N.  Y.)  259;  Ballan- 


458  PERSONS  NON   COMPOTES   MENTIS  AND   ALIENS.  (Ch.  15 

a  son  would  be  invalid  if  the  testator  was  under  an  insane  delusion  that 
the  son  was  not  his  own.  But  a  delusion  not  arising  from  mental  dis- 
order would  be  immaterial.  Thus,  the  testator's  mistaken  opinion  that 
his  child  is  illegitimate  will  not  invalidate  his  will.®'  A  will  is  not  af- 
fected even  by  an  insane  delusion  that  has  no  connection  with  it.®* 

Wills  are  most  frequently  contested  for  mental  incapacity  on  the 
ground  of  senile  dementia,  which  results  from  a  decay  and  wearing  out 
of  the  mental  faculties  in  old  age.  If,  from  such  a  cause,  a  person 
has  not  sufficient  mental  capacity,  within  the  rules  above  stated,  he 
cannot  make  a  valid  will.®^  A  person  is  not  rendered  incompetent  to 
make  a  will  by  deafness,  dumbness,  or  blindness,  if  his  mind  is 
sound.®'    Nor  does  mere  eccentricity  render  him  incompetent.®^ 

The  fact  that  a  testator  was  under  guardianship  as  non  compos 
mentis  at  the  time  he  made  the  will  does  not  render  the  will  invalid, 
if  it  can  be  shown  that  he  was  in  fact  of  sound  mind.  But  the  fact 
of  guardianship  is  prima  facie  evidence  of  insanity  and  incapacity  to 
make  a  will,  and  the  burden  of  showing  the  contrary  is  on  the  pro- 
ponent.®* 

CONTRACTS   OF  DRUNKEN  PERSONS. 

242.  A  contract  or  conveyance  made  by  a  person  when  he  is  so  drnnk 

that  he  is  incapable  of  nnderstanding  its  nature  and  effect 
is  voidable  at  his  option.  He  is  liable,  hoTirever,  on  contracts 
created  by  laxir,  and  for  necessaries. 

243.  The  rules  as  to  ratification  and  avoidance  are  substantially  the 

same  as  in  the  case  of  inf.q,nts  and  insane  persons.  Some  courts, 
hoTirever,  hold  that  the  right  of  avoidance  cannot  be  exercised 
against  bona  fide  purchasers  for  value. 


tine  V.  Proudfoot,  62  Wis.  216,  22  N.  W.  392;  Smee  v.  Smee,  32  Moalj,  311, 
5  Prob.  Div.  84,  Abb.  Dese.,  Wills  &  Adm.  205 ;  Morse  v.  Scott,  4  Dem.  Sur.  (N. 
Y.)  507,  Abb.  Desc,   Wills  &  Adm.  209. 

88  Clapp  V.  Fullerton,  34  N.  Y.  190,  90  Am.  Dec.  G8L  And  see  Stackhouse 
V.  Horton,  15  N.  J.  Eq.  202. 

84  See  Banks  v.  Goodfellow,  L.  R.  5  Q.  B.  549,  Abb.  Desc,  Wills  &  Adm. 
211 ;  Smee  v.  Smee,  32  Moak,  311,  5  Prob.  Div.  84,  Abb.  Desc,  Wills  &  Adm. 
205. 

85  As  to  senile  dementia,  and  incapaflty  on  that  ground,  see  Van  Alst  v. 
Hunter,  5  Johns.  Ch.  (N.  Y.)  148 ;  Blauchard  v.  Nestle,  3  Denio  (N.  Y.)  37. 

8  6  Brower  v.  Fisher,  4  Johns.  Ch.  (N.  Y.)  441 ;  In  re  Barber,  39  Ch.  Div.  187. 

8T  In  re  Smith's  Will,  52  Wis.  543,  8  N.  W.  616,  38  Am.  Rep.  756. 

8  8  Stone  V.  Damon,  12  Mass.  488;  Breed  v.  Pratt,  18  Pick.  (Mass.)  115. 


5§   242-243)  DRUNKEN   PERSONS — CONTRACTS.  459 

A  drunken  person  is  in  exactly  the  same  position  as  an  insane  per- 
son with  respect  to  his  capacity  to  enter  into  contracts.  It  was  for- 
merly considered  that  a  man  should  not  be  permitted  to  stultify  himself 
by  pleading  drunkenness  when  sued  upon  a  contract,  or  for  the  pur- 
pose of  avoiding  a  deed ;  but  this  doctrine  has  long  since  been  explod- 
ed, and  it  is  now  perfectly  well  settled  that  a  contract  or  conveyance 
made  by  a  drunken  person  is  voidable  at  his  option  if  his  drunkenness 
was  so  excessive  as  to  render  him  incapable  of  comprehending  its  na- 
ture and  effect,  or,  in  other  words,  of  knowing  what  he  was  doing.^ 
The  contract  or  conveyance  is  not  void,  but  simply  voidable,  at  the 
option  of  the  drunken  party.  It  makes  no  difference  that  the  intoxi- 
cation was  voluntary,  and  not  fraudulently  induced  or  caused  by  the 
other  party.^  The  defense  of  drunkenness  to  defeat  a  contract  is  per- 
sonal, like  the  defense  of  infancy  and  insanity,  and  can  only  be  set  up 
by  the  party  or  his  representative.  The  other  party  cannot  avoid  the 
contract,  nor  can  it  be  attacked  by  third  persons.' 

Some  courts  make  no  distinction  between  cases  in  which  the  drunk- 
en person  is  under  guardianship  and  other  cases;   but  hold  the  con- 


1  Clark,  Cont.  274,  and  cases  there  cited ;  Gore  v.  Gibson,  13  Mees.  &  W. 
623 ;  Spoonheim  v,  Spoonheim,  14  N.  D.  380,  104  N.  W.  845 ;  Barrett  v.  Bux- 
ton, 2  Aiken  (Vt.)  167,  16  Am.  Dec.  691;  Carpenter  v.  Rodgers,  61  Mich.  384, 
28  N.  W.  156,  1  Ain.  St.  Rep.  595;  Miller  v.  Finley,  26  iHch.  254,  12  Am. 
Rep.  306;  Foss  v.  Hildreth,  10  Allen  (Mass.)  76;  Van  Wyck  v.  Brasher,  81 
N.  Y.  260;  Shackelton  v.  Sebree,  86  111.  616;  Bates  v.  Ball,  72  111.  108;  Newell 
V.  Fisher,  11  Smedes  &  M.  (Miss.)  431,  49  Am.  Dec.  66 ;  Broadwater  v.  Darne, 
10  Mo,  277.  Slight  intoxication  is  not  enough  to  render  a  contract  voidable. 
It  must  be  so  excessive  as  to  render  the  party  incapable  of  knowing  what 
he  is  doing.  Van  Wyck  v.  Brasher,  81  N.  Y.  260;  Kuhlman  v.  Wieben,  129 
Iowa,  188,  105  N.  W.  445,  2  L.  R  A.  (N.  S.)  666;  Conley  v.  Nailor,  118  U. 
S.  127,  6  Sup.  Ct.  1001,  30  L.  Ed.  112 ;  Van  Horn  v.  Keenan,  28  111.  445.  The 
test  whether  Intoxication  is  such  as  to  render  the  subject  thereof  Incompe- 
tent to  contract  is  whether  his  condition  is  such  that  he  does  not  know  what 
he  is  about,  and  is  incapable  of  appreciating  what  he  is  doing.  Mere  im- 
becility of  mind,  or  inability  to  act  wisely  or  discreetly,  or  to  effect  a  good 
bargain,  is  insufficient.    Cameron-Barkley  Co.  v.  Thornton  Light  &  Power  Co., 

.138  N.  C.  365,  50  S.  E.  695,  107  Am.  St.  Rep.  532. 

2  Cameron-Barkley  Co.  v.  Thornton  Light  &  Power  Co.,  138  N.  C.  365,  50 
S.  E.  095,  107  Am.  St.  Rep.  532;  Fowler  v.  Meadow  Brook  Water  Co.,  208 
Pa.  473,  57  Atl.  959.  See,  also,  the  cases  above  cited.  But  see  Youn  v.  La- 
mont,  56  Minn.  216,  57  N.  W.  478. 

«  Matthews  v.  Baxter,  L.  R.  8  Exch.  132 ;  Eaton's  Adm'r  v.  Perry,  29  Mo.  96. 


460  PERSONS  NON   COMPOTES  MENTIS   AND   ALIENS.  (Ch.  15 

tract  or  conveyance  merely  voidable  in  both  cases.*  Other  courts  hold 
that  in  the  former  case  it  is  absolutely  void.''  A  drunken  person,  like 
an  infant  or  an  insane  person,  is  liable  for  necessaries  furnished  to 
him,  or  to  his  wife  or  children.' 

Ratification  and  Avoidance. 

The  principles  governing  the  ratification  or  avoidance  of  a  contract 
and  conveyance  by  a  person  who  was  drunk  when  he  made  it  are  the 
same  as  in  the  case  of  insane  persons.  He  may  either  ratify  or  avoid 
it  when  he  is  sober.  And  ratification  may  be  by  conduct,  as  by  retain- 
ing the  consideration,  or  failure  to  disaffirm  for  an  unreasonable  time.'' 
After  the  contract  or  conveyance  has  been  ratified,  it  is  binding  abso- 
lutely, and  cannot  then  be  avoided.*  On  avoidance,  the  consideration 
must  be  returned,  or  an  offer  be  made  to  return  it,*  unless,  perhaps,  it 
was  wasted  before  the  party  became  sober.^° 

Some  courts  hold  that  drunkenness  is  no  defense  as  against  inno- 
cent third  persons  who  acquire  rights  under  or  through  the  contract 
or  conveyance  for  value  and  without  notice ;  that  a  party  to  a  negotia- 
ble instrument,  or  the  grantor  of  land,  cannot  set  up  his  intoxication 
at  the  time  he  delivered  the  instrument  or  conveyance,  as  against  a 
bona  fide  holder  or  a  bona  fide  purchaser  of  the  land,  for  value. ^^ 
Other  courts  allow  such  a  defense  even  as  against  them,  to  the  same 
extent  as  if  the  party  had  been  insane.^* 

*  Donehoo's  Ai>peal  (Pa.)  15  Atl.  924. 

B  Wadsworth  v.  Sharpsteen,  8  N.  Y.  388,  59  Am.  Dec.  499 ;  Cockrill  v.  Cock- 
rill,  92  Fed.  811,  34  C.  0.  A.  254. 

6  Gore  V.  Gibson,  13  Mees.  &  W.  623 ;  McCrillis  v.  Bartlett,  8  N.  H.  5G9. 

t  Williams  v.  Inabnet,  1  Bailey  (S.  C.)  343 ;  Reinskopf  v.  Rogge,  37  Ind. 
207;  Smith  v.  Williamson,  8  Utab,  219,  30  Pac.  753;  Mansfield  v.  Watson,  2 
Iowa,  111. 

8  Matthews  v.  Baxter,  L.  R.  8  Exch.  132 ;  Joest  v.  Williams,  42  Ind.  565, 
13  Am.  Rep.  377. 

»  Joest  V.  Williams,  42  Ind.  565,  13  Am.  Rep.  377. 

10  Thackrah  v.  Haas,  119  U.  S.  499,  7  Sup.  Ot.  311,  30  L.  Ed.  486. 

11  Johnson  v.  Medlicott,  3  P.  Wms.  130,  note;  State  Bank  v.  McCoy,  69  Pa. 
204,  8  Am.  Rep.  246;  McSparran  v.  Neeley,  91  Pa.  17.  See  Norton,  Bills  & 
N.  216-223. 

12  Gore  V.  Gibson,  13  Mees.  &  W.  623;  Wigglesworth  v.  Steers,  1  Hen.  & 
M.  (Va.)  70,  3  Am.  Dec.  602 ;  Jenners  v.  Howard,  6  Blackf .  (Ind.)  240 ;  Hawkins 
V.  Bone,  4  Fost  &  F.  311, 


§    245)         DRUNKEN    PERSONS — RESPONSIBILITY    FOK   CRIMES.  461 

LIABILITY    OF    DRUNKEN    PERSON    FOR    TORTS. 

244.  A  drunken  person  is  liable  for  Ms  torts  to  the  same  extent  as  if 

lie  TO-ere  sober,  except  that  the  fact  of  drunkenness  may  miti- 
gate the  damages  by  excluding  the  questioii  of  malice. 

The  fact  that  a  man  is  drunk  when  he  commits  a  tort  may  in  some 
cases  mitigate  the  damages,  by  excluding  the  question  of  malice,^'  but 
otherwise  it  is  no  defense.  He  is  liable  in  damages  for  any  tortious 
conduct,  even  though  he  may  have  been  so  drunk  that  he  did  not  know 
what  he  was  doing.^* 

RESPONSIBILITY  OF  DRUNKEN  PERSON  FOR  CRIME. 

245.  Voluntary  drunkenness  furnishes  no  ground  of  exemption  from 

responsibility  for  crime,  unless  the  act  is  committed  ■while 
the  party  is  laboring  under  settled  insanity  or  delirium  tre- 
mens, resulting  from  intoxication.  But,  'where  a  specific  in- 
tent is  an  essential  ingredient  of  the  particular  crime,  the  fact 
of  intoxication  may  negative  its  existence;  and  in  homicide 
cases  it  may  be  material  in  determining  nrhether,  in  the  case 
of  adequate  provocation  to  reduce  the  killing  to  manslaughter, 
the  party  acted  under  the  provocation  or  from  malice. 

Nothing  is  better  settled  in  the  criminal  law  than  that  voluntary 
drunkenness  does  not  exempt  a  man  from  responsibility  for  his  crimes/^ 
In  England,  nearly  500  years  ago,  it  was  said  that,  "if  a  man  that  is 
drunk  kills  another,  this  shall  be  felony,  and  he  shall  be  hanged  for  it ; 
and  yet  he  did  it  through  ignorance,  for  when  he  was  drunk  he  had  no 
understanding  nor  memory;  but  inasmuch  as  that  ignorance  was  oc- 
casioned by  his  own  act  and  folly,  and  he  might  have  avoided  it,  he 

13  1  Jag.  Torts,  166;  Dawson  v.  State,  16  Ind.  428,  79  Am.  Dec.  439. 

1*  1  Jag.  Torts,  165;  Reed  v.  Harper,  25  Iowa,  87,  95  Am.  Dec.  774 ;  Cassady 
V.  Magher,  85  Ind.  228;  McKee  v.  Ingalls,  4  Scam.  (111.)  30;  Alger  v.  City  of 
Lowell,  3  Allen  (Mass.)  402. 

15  Clark,  Cr.  Law,  60;  Beverley's  Case,  4  Coke,  125a ;  Ryan  v.  United  States, 
26  App.  D.  C.  74 ;  Byrd  v.  State,  76  Ark.  286,  88  S.  W.  974 ;  People  v.  Rogers, 
18  N.  Y.  9,  72  Am.  Dec.  484 ;  U.  S.  v.  Drew,  5  Mason,  28,  Fed.  Cas.  No.  14,933; 
People  V.  Garbutt,  17  Mich.  9,  97  Am.  Dec.  162;  People  v.  Walker,  38  Mich. 
156;  Com.  v.  Hawkins,  3  Gray  (Mass.)  463:  Mclntyre  v.  People,  38  111.  514; 
Rafferty  v.  People,  66  111.  118;  Upstone  v.  People,  109  111.  169;  State  v.  Welch, 
21  Minn.  22 ;  Choice  v.  State,  31  Ga.  424. 


462  PERSONS  NON   COMPOTES  MENTIS  AND   ALIENS.  (Cll.  15 

shall  not  be  privileged  thereby."  ^"  The  rule  does  not  apply  where  set- 
tled insanity  or  delirium  tremens  results  from  voluntary  drunkenness ; 
but  in  such  a  case  the  party  is  in  the  same  position  as  if  he  were  in- 
sane from  any  other  cause. ^'^  Nor  does  the  rule  apply  to  crimes  of 
which  a  specific  intent  is  an  essential  element,^*  like  burglary,  where 
the  specific  intent  to  commit  a  felony  is  essential,  or  robbery,  or  lar- 
ceny, or  assault  with  intent  to  kill.  Nor,  in  some  states,  does  it  ap- 
ply to  murder  in  the  first  degree,  as  a  specific  intent  to  kill  is  necessarj', 
and  general  malice  is  not  sufficient,  as  at  common  law.^"  Where  a  man, 
when  he  commits  an  act,  is  too  drunk  to  entertain  a  specific  intent  which 
is  necessary  to  make  that  act  a  particular  crime,  and  did  not  first  form 
such  intent,  and  then  become  intoxicated,  he  cannot  be  guilty  of  that 
particular  crime.^**  But  he  may  be  guilty  of  some  other  crime  for 
which  no  specific  intent  is  necessary.  Thus  drunkenness  may  prevent 
a  man  from  being  guilty  of  assault  with  intent  to  kill,  but  he  may  be 
convicted  of  common  assault,  for  in  the  latter  case  no  specific  intent 
is  necessary.*^  Drunkenness  is  no  defense  in  a  prosecution  for  mur- 
der at  common  law;  ^^  but  evidence  of  drunkenness  is  material  on  the 
question  whether  a  homicide  is  statutory  murder  in  the  first  degree, 


18  Reniger  v.  Fogossa,  Plow.  19. 

17  People  V.  Hammill,  2  Parker,  Cr.  R.  (N.  Y.)  223;  Reg.  v.  Davis,  14  Cox, 
Cr.  Cas.  563;  U.  S.  v.  McGlue,  1  Curt.  1,  Fed.  Gas.  No.  15,679;  Beasley  v. 
State,  50  Ala.  149,  20  Am.  Rep.  292;  State  v.  Robinson,  20  W.  Va.  713,  43 
Am.  Rep.  799. 

18  State  V.  Yates,  132  Iowa,  475,  100  N.  W.  1005;  State  v.  Truitt,  5  Penne- 
will  (Del.)  406,  62  Atl.  790 ;  Collins  v.  State,  115  Wis.  590,  92  N.  W.  266.  But 
see  State  v,  Stebbins,  1S8  Mo.  3S7,  87  S.  W.  460,  where  ttie  crime  was  robbery. 
If  the  intent  is  first  formed,  and  the  accused  dranii  to  intoxication  prior  to 
committing  the  crime,  drunkenness  is  no  excuse.  People  v.  Koerner,  117  App. 
Div.  40,  102  N.  Y.  Supp.  93;  State  v.  Truitt,  5  Pennewill  (Del.)  406,  62  Atl. 
790. 

18  State  V.  Adams  (Del.  O.  &  T.)  65  Atl.  510.  In  manslaughter,  specific  In- 
tent is  not  an  element  and  drunkenness  is  no  defense.  Laws  v.  State,  144 
Ala.  118,  42  South.  40.  Voluntary  intoxication,  not  resulting  in  fixed  or  set- 
tled frenzy  or  insanity,  either  permanent  or  intermittent,  does  not  excuse  or 
mitigate  any  degree  of  unlawful  homicide  below  murder  in  the  first  degree. 
Thomas  v.  State,  47  Fla.  99,  36  South.  161. 

20  Reg.  V.  Doody,  6  Cox,  Cr.  Cas.  463. 

21  State  V.  Truitt,  5  Pennewill   (Del.)  466,  62  Atl.  790. 

2  2  State  V.  McCants,  1  Speer  (S.  C.)  384;  Kelly  v.  State,  3  Smedes  &  M. 
(Miss.)  5ia 


§    246)  DRUNKEN   PERSONS — CAPACITY   TO    MAKE   A   WILL.  463 

in  those  jurisdictions  where  an  actual  intent  to  kill  is  necessary.^*' 
And,  by  the  weight  of  opinion,  evidence  of  drunkenness  is  admissible 
on  the  question  whether,  where  there  was  sufficient  provocation  to  re- 
duce a  homicide  to  manslaughter,  the  accused  acted  under  the  influ- 
ence of  passion  caused  by  the  provocation,  or  from  malice.^*  If  a  per- 
son is  made  drunk  by  the  stratagem  or  fraud  of  another,  he  is  not  re- 
sponsible.*' 

CAPACITY  OF  DRUNKEN  PERSON  TO  MAKE  A  W^ILL. 

246.  DrniLkeiiness  renders  a  person  incompetent  to  make  a  will,  if  it 
affects  his  mind  to  sncli  an  extent  tliat  he  would  be  incompe- 
tent in  case  of  insanity. 

The  mere  fact  that  a  person  is  addicted  to  drink,  and  is  under  guard- 
ianship, as  incapable  of  managing  his  estate,  does  not  render  him  in- 
competent to  make  a  will.^s  Nor  does  the  mere  fact  of  drunkenness 
at  the  time  of  making  a  will  render  it  invalid,  unless  it  was  so  great 
as  to  render  the  testator  incapable  of  understanding  the  nature  and 
effect  of  the  will,  within  the  rules  shown  in  treating  of  insanity.^^  If 
it  has  this  eflfect,  the  will  is  void.^^  Inebriety,  although  long  contin- 
ued, and  resulting  occasionally  in  temporary  insanity,  does  not  require 
proof  of  lucid  intervals  to  give  validity  to  the  party's  will,  as  is  re- 
quired where  general  insanity  is  proved.  Therefore,  where  habitual 
intoxication  is  shown,  there  will  be  no  presumption  that  there  was  in- 
capacitating drunkenness  at  the  time  the  will  was  made.  Such  a  con- 
dition must  be  affirmatively  proved,  or  the  presumption  of  capacity  will 
prevail.^' 

2  3  state  V.  Johnson,  40  Conn.  13G;  People  v.  Walker,  38  Mich.  15G;  Hopt 
V.  Utah,  104  U.  S.  631,  26  L.  Ed.  873;  Willis  v.  Com.,  32  Grat  (Va.)  929; 
Swan  V.  State,  4  Humph.  (Tenn.)  136 ;  Pirtle  v.  State,  9  Humph.  (Tenn.)  663 ; 
Clark,  Cr.  Law,  63,  64,  and  cases  there  cited. 

2*  People  V.  Rogers,  18  N.  Y.  9,  72  Am.  Dec.  484;  Pearson's  Case,  2  Lewin, 
Crown  Cas.  144 ;  Mclntyre  v.  People,  38  111.  514 ;  Clark,  Cr.  Law,  65. 

2  5  Pearson's  Case,  2  Lewin,  Crown  Cas.  144. 

28  In  re  Slinger's  Will,  72  Wis.  22,  37  N.  W.  236;  Harrison  v.  Bishop,  131 
Ind.  161,  30  N.  E.  1069,  31  Am.  St.  Rep.  422. 

2  7  Andress  v.  Weller,  3  N.  J.  Eq.  604;  Kahl  v.  Schober,  35  N.  J.  Eq.  461; 
Starrett  v.  Douglass,  2  Yeates  (Pa.)  48;  Gardner  v.  Gardner,  22  Wend.  (N.  Y.) 
526,  34  Am.  Dec.  340;  Abb.  Desc.,  Wills  &  Adm.  236;  Hewitt's  Appeal,  55 
Md.  509. 

28  See  cases  cited  above. 

2  0  In  re  Lee's  Will,  46  N.  J.  Eq.  193,  18  AU.  525.  See,  also,  Swygart  v.  Wil- 
lard,  166  Ind.  25,  76  N.  E.  755. 


464  PERSONS  NON   COMPOTES  MENTIS  AND   ALIENS.  (Ch.  15 


ALIENS. 

247.  An  alien  is  a  person  born  ont  of  the  jurisdiction  of  the  United 

States,  subject  to  some  foreig:n  government,  and  \cho  has  not 
been  naturalized  under  their  constitution  and  laws.  Children 
of  citizens  of  the  United  States  born  abroad  are  citizens. 

248.  An  alien  domiciled  in  the  United  States  is  subject  to  the  laws 

of  the  United  States  and  of  the  state  in  xirhich  he  resides  to 
the  same  extent  as  a  citizen. 

249.  An  alien  has  the  same  rights  as  a  citizen  with  respect  to  acquir- 

ing, holding,  and  disposing  of  personal  property,  and  may  con- 
tract in  relation  thereto,  and  sue  and  be  sued  on  his  contracts. 

250.  An  alien  may  also  sue  and  be  sued  for  torts. 

251.  At   common  la,vsr,  an  alien  cannot  take   or  transmit  land  by  de- 

scent. But  he  can  take  by  devise  or  purchase  subject  to  the 
right  of  the  state  to  enforce  a  forfeiture  by  inquest  and  office 
found.  His  title  is  good  as  against  all  persons  but  the  state, 
and  is  good  as  against  the  state  until  office  found.  And  an 
alien  can  dispose  of  land  acquired  by  purchase  or  devise,  and 
his  grantee  or  devisee  will  take  a  good  title  against  every  per- 
son but  the  state.  The  common  la-w  in  this  respect  has  been 
abolished  in  some  states,  and  modified  in  others,  by  statute. 

252.  An  alien  enemy  cannot,  without  leave  of  the  government,  make 

any  fresh  contract,  or  enforce  any  existing  contract,  during 
the  continuance  of  war  betw^een  his  government  and  the  Unit- 
ed States.  Some  courts  require  adherence  to  the  enemy  by  a 
resident  alien  to  disqualify  him.  He  may  be  sued  on  existing 
contracts,  and  in  such  a  case  he  may  defend.  Pre-existing  con- 
tracts are  not  dissolved  by  the  w^ar  unless  they  are  of  a  con- 
tinuing nature,  and  antagonistic  to  the  rules  governing  a  state 
of  war. 

An  alien  is  a  person  born  out  of  the  jurisdiction  of  the  United  States, 
subject  to  some  foreign  government,  and  who  has  not  been  naturahzed 
under  their  constitution  and  laws.*"  A  citizen  of  the  United  States 
does  not  cease  to  be  a  citizen  merely  by  residing  in  a  foreign  country ; 
and  even  at  common  law,  as  well  as  by  an  act  of  Congress,  children  of 
citizens  of  the  United  States,  though  born  abroad,  are  citizens  of  the 
United  States,  and  not  aliens.*^     Whether  a  citizen  has  a  right  to  ex- 

30  2  Kent,  Comm.  50;  Dawson's  Lessee  v.  Godfrey,  4  Cranch,  321,  2  L.  Ed. 
634 ;  Ainslie  v.  Martin,  9  Mass.  454. 

81  Ludlam  v.  Ludlam,  26  N.  Y.  356,  84  Am.  Dec.  193;  Crane  v.  Reeder,  25 
Mich.  303 ;  Davis  v.  Hall,  1  Nott  &  McC.  (S.  C.)  292 ;  Campbell  v.  Wallace,  12 


§§  247-252)  ALIENS.  465 

patriate  himself  is  a  question  upon  which  there  has  been  much  conflict 
of  opinion.  By  the  better  opinion,  a  citizen  may  renounce  his  allegi- 
ance at  pleasure,  if  he  acts  in  good  faith,  and  becomes  a  citizen  and 
subject  of  a  foreign  government.'^  Some  authorities  say  that  he  can- 
not do  so  without  the  consent  of  the  government."  It  seems  that  none 
of  the  authorities  hold  that  a  citizen  casts  off  his  allegiance  before  he 
becomes  a  citizen  or  subject  of  a  foreign  government.^*  The  question 
has  been  set  at  rest  in  this  country,  and  in  some  others,  by  statutes 
declaring  the  right  of  expatriation  to  exist."  An  alien  woman  who 
marries  a  citizen  of  the  United  States  becomes  a  citizen ;»«  and  the 
same  is  true  of  an  alien  woman  whose  husband  becomes  naturalized.' '^ 

Aliens  are  Subject  to  the  Laws. 

As  a  general  rule,  aliens  domiciled  in  this  country  are  just  as  much 
subject  to  the  laws  of  the  United  States,  and  of  the  state  in  which 
they  reside  or  may  be,  as  citizens.    As  was  said  by  Mr.  Justice  Field 

N.  H.  362,  37  Am.  Dec.  219 ;  Rev.  St.  U.  S.  1878,  $  1993  (U.  S.  Comp.  St.  1901, 
p.  126S),  declares :  "All  children  heretofore  born  or  hereafter  born  out  of  the 
limits  and  jurisdiction  of  the  United  States,  whose  fathers  were  or  may  be 
at  the  time  of  their  birth  citizens  thereof,  are  declared  to  be  citizens  of 
the  United  States ;  but  the  rights  of  citizenship  shall  not  descend  to  children 
whose  fathers  never  resided  in  the  United  States."  The  child  of  one  who  has 
renounced  his  citizenship  of  the  United  States,'  and  become  a  citizen  and 
subject  of  a  foreign  government,  born  after  such  renunciation,  is  not  a  citizen, 
but  an  alien.     Browne  v.  Dexter,  66  Cal.  39,  4  Pac.  913. 

32  In  a  Kentucky  case  it  was  said:  "The  government,  for  the  purpose 
of  preventing  abuse,  and  securing  the  public  welfare,  may  regulate  the 
mode  of  expatriation.  But  where  it  has  not  prescribed  any  limitation  on  this 
right,  and  the  citizen  has  in  good  faith  abjured  his  country,  and  become 
a  citizen  or  subject  of  a  foreign  nation,  he  should,  as  to  his  native  govern- 
ment, be  considered  as  denationalized."  Alsberry  v.  Hawkins,  9  Dana,  178, 
33  Am.  Dec.  546.  Secretary  Cass  went  so  far  as  to  deny  the  right  of  govern- 
ments to  prohibit  expatriation,  except  where  the  act  of  expatriation,  if  recog- 
nized, would  deiirive  the  government  of  the  power  to  punish  the  citizen  or 
subject  for  an  offense  previously  committed.  He  said:  "The  moment  a  for- 
eigner becomes  naturalized,  his  allegiance  to  his  native  country  is  severed 
forever.  He  experiences  a  new  political  birth.  A  broad  and  impassable  line 
separates  him  from  his  native  country."     Hal.  Int.  Law,  c.  29,  §  4. 

33Ludlam  v.  Ludlam,  26  N.  Y.  356,  84  Am.  Dec.  193,  collating  the  au- 
thorities. 

84  Ludlam  v.  Ludlam,  26  N.  Y.  356,  84  Am.  Dec.  193. 

88  U.  S.  Comp.  St.  1901,  §  1999.  See,  on  this  question,  Glenn,  Int.  Law. 
129-131. 

86  Luhrs  V.  Ehner,  80  N.  Y.  171.  st  Headman  ▼.  Rose,  63  Ga.  458. 

TIFF.P.&  D.Rel.(2d  Ed.)-^0 


466  PERSONS  NON   COMPOTES  MENTIS  AND  ALIENS.  (Ch.  15 

in  Carlisle  v.  U.  S./®  the  alien,  while  domiciled  in  the  country,  owes 
a  local  and  temporary  allegiance,  which  continues  during  the  period 
of  his  residence.  He  is  bound  to  obey  all  the  laws  of  the  country  not 
immediately  relating  to  citizenship,  during  his  sojourn  in  it,  and  he  is 
equally  amenable  with  citizens  for  any  infractions  of  those  laws.  It 
was  said  by  Daniel  Webster,  when  Secretary  of  State,  in  a  report  to 
the  President:  "Independently  of  a  residence,  with  intention  to  con- 
tinue such  residence,  independently  of  any  domiciliation,  independent- 
ly of  the  taking  of  any  oath  of  allegiance,  or  of  renouncing  any  for- 
mer allegiance,  it  is  well  known  that,  by  the  public  law,  an  alien  or  a 
stranger  born,  for  so  long  a  time  as  he  continues  within  the  dominions 
of  a  foreign  government,  owes  obedience  to  the  laws  of  that  govern- 
ment, and  may  be  punished  for  treason  or  other  crimes  as  a  native- 
born  subject  might  be,  unless  his  case  is  varied  by  some  treaty  stipu- 
lation." «» 

This  rule  does  not  apply  to  foreign  friendly  sovereigns  and  their 
attendants,  nor  to  foreign  ambassadors,  ministers,  and  diplomatic 
agents,  and  their  servants ;  but  it  does  apply  to  consuls,  who  are  mere 
commercial  agents.*" 

Rights  and  Liabilities  of  Alien  Friends. 

An  alien  at  common  law,  as  well  as  under  the  statutes  of  the  dif- 
ferent states,  has  substantially  the  same  powers  as  a  citizen  with  re- 
spect to  acquiring,  holding,  and  disposing  of  personal  property;  and, 
like  a  citizen,  he  may  make  contracts  with  respect  to  personal  proper- 
ty, and  sue  and  be  sued  thereon.** 

If  he  commits  a  tort,  he  may  be  sued  therefor,  and  he  may  sue  to 
recover  for  a  tort  committed  against  him,  to  the  same  extent  as  a  citi- 

8  8  16  Wall.  147,  21  L.  Ed.  426. 

39  6  Wobst.  Works,  526,  quoted  with  approval  In  Carlisle  v.  U.  S.,  16  Wall. 
147,  21  L.  Ed.  426.  And  see  Olcott  v.  Maclean,  73  N.  Y.  223;  People  v.  Mc- 
Leod,  1  Hill  (N.  Y.)  377,  37  Am.  Dec.  328 ;  Id.,  25  Wend.  (N.  Y.)  483,  37  Am. 
Dec.  328 ;  State  v.  Neibekier,  184  Mo.  211,  83  S.  W.  523. 

40  1  Kent,  Comm.  38  et  seq. ;  State  v.  De  La  Foret,  2  Nott  &  McC.  (S.  C.) 
217;  Respublica  v.  I>e  Longchamps,  1  Dall.  Ill,  1  L.  Ed.  59. 

*i  Thus,  an  alien  mortgagee,  independently  of  any  statute  or  any  treaty 
stipulations,  may  come  into  a  court  of  equity,  and  have  the  land  sold  to 
satisfy  the  mortgage  debt;  the  demand  being  merely  a  personal  one.  Hughes 
V.  Edwards,  9  Wheat.  489,  6  L.  Ed.  142.  The  right  to  reside  in  a  foreign 
country  implies  the  right  to  labor  there  for  a  living.  Baker  v.  Portland,. 
5  Sawy.  566,  Fed.  Gas.  No.  777. 


§§  247-252)  ALIENS.  467 

zen.*^  It  has  even  been  held  that  one  alien  may  sue  another  in  our 
courts  upon  a  contract  made  abroad,  or  for  a  tort  committed  abroad, 
if  both  parties  are  transiently  here.*' 

At  common  law  an  alien  is  under  disabilities  with  respect  to  acquir- 
ing and  holding  land ;  and  the  common  law  in  this  respect  is  still  in 
force  in  some  jurisdictions,  or  has  been  declared  in  whole  or  in  part 
by  statute.  An  alien  at  common  law  can  take  land  by  purchase  or  by 
devise,  but  he  takes  the  title  subject  to  the  right  of  the  sovereign — 
with  us  the  state — to  enforce  a  forfeiture.  He  can  hold  the  same 
against  all  persons  but  the  state,  and  he  holds  as  against  the  state 
until  office  found ;  that  is,  until  proper  proceedings  have  been  institut- 
ed, and  a  judgment  rendered  declaring  a  forfeiture.  Upon  inquest  and 
office  found,  but  not  before,  the  land  is  forfeited  to  the  state.**  At 
common  law,  and  unless,  as  is  the  case  in  some  jurisdictions,  he  is  re- 
strained by  statute,  an  alien  can  devise  or  convey  land  acquired  by  pur- 
chase or  devise,  and  the  grantee  or  devisee  will  take  a  good  title  as 
against  every  person  except  the  state.  The  title  remains  voidable,  how- 
ever, by  the  state.** 

But  an  alien,  at  common  law,  cannot  take  land  by  descent.*'  He 
may  take,  as  it  is  said,  by  act  of  the  party,  but  not  by  operation  of 
law.  Nor  can  an  alien  transmit  land  by  descent.  No  one — not  even 
a  citizen — can  claim  by  inheritance  from  or  through  an  alien.  On  the 
death  of  an  alien  intestate  his  land  vests  in  the  state  immediately  and 


42  Crashley  v.  Press  Pub.  Co.,  179  N.  Y.  27,  71  N.  E.  258,  affirming  74 
App.  Div.  118,  77  N.  Y.  Supp.  711. 

* 3  Roberts  v.  Knigbts,  7  Allen  (Mass.)  449;  Dewitt  v.  Bucbanan,  54  Barb. 
(N.  Y.)  31. 

*i  See  Fairfax's  Devisee  v.  Hunter's  Lessee,"  7  Cranch,  G03,  020,  3  I*  Ed. 
453;  Doe  v.  Robertson,  11  Wbeat.  332,  6  L.  Ed.  488;  Fox  v.  Soutback,  12 
Mass.  143;  Wadsworth  v.  Wadswortb,  12  N.  Y.  376;  Harley  v.  State,  40  Ala. 
689;  Jackson  v.  Beacb,  1  Jobns.  Cas.  (N.  Y.)  399. 

40  Crane  v.  Reeder,  21  Micb.  24,  4  Am.  Rep.  430 ;  Marx  v.  McGlynn,  88  N. 
Y.  357;  Emmett  v.  Emmett,  14  Lea  (Tenn.)  369;  Jones  v.  McMasters,  20  How. 
.21,  15  L.  Ed.  805;  Harley  v.  State,  40  Ala.  689;  Hepburn  v.  Dunlop,  1  Wheat 
198,  4  L.  Ed.  65. 

48  See  cases  above  cited.  And  see  Dawson's  Lessee  v.  Godfrey,  4  Cranch, 
321,  2  L.  Ed.  634;  Orr  v.  Hodgson,  4  Wbeat  453,  4  L.  Ed.  613;  Mooers  v. 
White,  6  Jobns.  Ch.  (N.  Y.)  360;  Crane  v.  Reeder,  21  Mich.  24,  4  Am.  Rep. 
430 ;  Goodrich  v.  Russell,  42  N.  Y.  177. 


4G8  PERSONS  NON   COMPOTES  MENTIS  AND   ALIENS.  (Ch.  15 

without  office  found.*''  Nor,  at  common  law,  can  an  alien  wife  claim 
dower,*®  or  an  alien  husband  claim  as  tenant  by  the  curtesy.*' 

The  doctrine  of  equitable  conversion  enables  a  devise  or  conveyance 
of  land  to  a  trustee  to  sell  the  same,  and  pay  over  the  proceeds  to  an 
alien ;  for  such  a  devise  or  conveyance  is  not  of  land,  but  of  person- 
alty.^" Under  the  same  doctrine,  a  devise  of  money  to  trustees  to  in- 
vest the  same  in  land  to  be  conveyed  to  an  alien  would  be  a  devise  of 
land,  and  not  of  money,  and  would  vest  him  with  a  defeasible  title  at 
common  law,  or  would  be  void  under  a  statute  declaring  void  a  de- 
vise of  land  to  an  alien.^^ 

Such  are  the  rules  of  the  common  law ;  but  in  most  states  they  have 
been  either  altogether  abolished,  or  greatly  modified  by  statute.  In 
some  states  the  common  law  is  still  in  force,  while  in  others  it  is  ex- 
pressly declared  by  statute.^*  In  others,  nonresident  aliens  are  not  giv- 
en the  right  to  acquire  or  hold  real  property,  while  resident  aliens  are.^^ 
And,  in  others,  aliens,  whether  resident  or  nonresident,  are  given  the 
same  right  as  native-born  subjects  as  to  acquiring  and  holding  real 
property,  either  by  descent  or  by  purchase,  and  of  disposing  of  the 
same  or  transmitting  by  descent.^*    The  laws  of  the  states  in  respect 


47  Slater  v.  Nason,  15  Pick.  (Mass.)  345;  Foss  v.  Crisp,  20  Pick.  (Mass.)  121 ; 
Jackson  v.  Fitz  Simmons,  10  Wend.  (N.  Y.)  9,  24  Am.  Dec.  198.  As  to  the 
effect  of  a  common  ancestor's  alienage,  see,  also,  Jackson  v.  Green,  7  Wend. 
(N.  Y.)  333;  McCreery's  Lessee  v.  Somerville,  9  Wheat.  354,  6  L.  Ed.  109;  Mc- 
Carthy V.  Marsh,  5  N.  Y.  263;  McGregor  v.  Comstock,  3  N.  Y.  409;  McLean 
V.    Swanton.    13    N.    Y.   535. 

*8  Sutliff  V.  Forgey,  1  Cow.  (N.  Y.)  89. 

49  Foss  V.  Crisp,  20  Pick.  (Mass.)  121;  Quinn  v.  Ladd,  37  Or.  261,  59  Pac. 
457 ;  Hatfield  v.  Sneden,  54  N.  Y.  280 ;  Mussey  v.  Pierre,  24  Me.  559. 

5  0  iNieakings  v.  Cromwell,  5  N.  Y.  136.  A  devise  of  land  to  executors,  who 
ai"e  citizens,  in  trust  to  pay  tfie  income  to  aliens,  is  valid.  Marx  v.  McGlynn, 
88  N.  Y.  357 ;  Craig  v.  Leslie,  3  Wheat.  563,  4  L.  Ed.  460. 

61  Beekman  v.  Bousor,  23  N.  Y.  298,  SO  Am.  Dec.  269. 

5  2  See  Wunderle  v.  Wunderle,  144  111.  40,  33  N.  E.  195,  19  L.  R,  A.  84; 
Zundell  v.  Gess  (Tex.)  9  S.  W.  879. 

53  Furenes  v.  Mickelson,  86  Iowa,  508,  53  N.  W.  416;  Bennett  v.  Hibbert, 
88  Iowa,  154,  55  N.  W.  93.  And  see  Dougherty  v.  Kubat,  67  Neb.  269,  93 
N.  W.  317,  construing  the  Nebraska  statute,  which  excepts  from  the  rule  land 
within  the  corporate  limits  of  cities  and  towns. 

5  4  Hanrick  v.  Gurley,  93  Tex.  458,  54  S.  W.  347,  55  S.  W.  119,  56  S.  W. 
330 ;  Blythe  v.  Hinckley,  127  Cal.  431,  59  Pac.  787,  affirmed  in  180  U.  S.  333, 
21  Sup.  Ct  390,  45  L.  Ed.  557;  Sparks  v.  Bodensick,  72  Kan.  5,  82  Pac.  463; 
Kelly  V.  Pratt,  41  Misc.  Rep.  31,  83  N.  Y.  Supp.  636. 


§§  247-252)  ALIENS.  469 

to  the  disability  of  aliens  is  to  some  extent  controlled  by  treaties  be- 
tween the  United  States  and  foreign  governments.  Though  the  right 
of  aliens  to  hold  real  property  is  dependent  upon  the  laws  of  the  state 
in  which  the  property  is  situated,  the  state  law  must  give  way  if  it 
conflicts  with  any  existing  treaty  between  the  government  of  the  Unit- 
ed States  and  the  government  of  the  country  of  which  such  alien  is  a 
subject  or  citizen.  "If  the  citizen  or  subject  of  a  foreign  government 
is  disqualified  under  the  laws  of  a  state  from  taking,  holding,  or  trans- 
ferring real  property,  such  disqualification  will  be  removed  if  a  treaty 
between  the  United  States  and  such  foreign  government  confers  the 
right  to  take,  hold,  or  transfer  real  property."  ^'  In  some  states  the 
constitution  expressly  prohibits  the  legislature  from  depriving  resi- 
dent foreigners  of  the  rights  enjoyed  by  native-born  citizens  with  re- 
spect to  the  acquisition,  enjoyment,  and  transmission  of  property.^" 
Doubtless,  in  all  of  the  states,  aliens  may  acquire,  hold,  and  dispose  of 
personal  property,  and  make  and  enforce  contracts  relating  to  per- 
sonal property  to  the  same  extent  as  citizens.*^ 

Alien  Enemies. 

An  alien  enemy  is  one  who  is  a  subject  of  some  government  with 
which  the  United  States  is  at  war.  Though  he  may  reside  in  the 
United  States,  yet,  by  reason  of  his  owing  allegiance  to  the  hostile 
state,  he  becomes  impressed  with  the  character  of  an  enemy.  And,  as 
a  general  rule,  he  cannot,  during  the  continuance  of  hostilities,  make 
any  fresh  contract,  or  enforce  any  existing  contract."**  If  he  is  sued 
on  his  contract,  however,  he  may  defend.^®    In  New  York  it  has  been 

66  Wunderle  v.  Wunderle,  144  111.  40,  33  N.  E.  195,  19  L.  R.  A.  84,  and  cases 
there  cited.  See  Hauenstein  v.  Lynham,  100  U.  S.  483,  25  L.  Ed.  G2S ;  Chirac 
V.  Chirac's  Lessee,  2  Wheat.  259,  4  L.  Ed.  234. 

66  See  State  v.  Smith,  70  Cal.  153,  12  Pac.  121;  Nicrosi  v.  PhillippI,  91  Ala. 
299,  8  South.  561. 

5  7  See  Taylor  v.  Carpenter,  3  Story,  458,  Fed.  Cas.  No.  13,784 ;  Cleveland, 
C,  C.  &  St.  L.  Ry.  Co.  v.  Osgood,  36  Ind.  App.  34,  73  N.  E.  285 ;'  Franco-Texan 
Land  Co.  v.  Chaptive  (Tex.)  3  S.  W.  31. 

6  8  Scholefield  v.  Eichelberger,  7  Pet.  586,  8  L.  Ed,  798;  The  Rapid,  8 
Cranch,  155,  3  L.  Ed.  520;  Mutual  Ben.  Life  Ins.  Co.  v.  Hillyard,  37  N.  J. 
Law,  444,  18  Am.  Rep.  741;  Wright  v.  Graham,  4  W.  Va.  430;  Masterson  v. 
Howard,  18  Wall.  99,  21  L.  Ed.  764;  Philips  v.  Hatch,  1  Dill.  571,  Fed.  Cas. 
No.  11,094;  Brooke  v.  Filer,  35  Ind.  402 ;  Blackwell  v.  Willard,  65  N.  C.  555, 
6  Am.  Rep.  749;  Semmes  v.  Insurance  Co.,  36  Conn.  543,  Fed.  Cas.  No.  12,651. 

6  9  Dorsey  v.  Thompson,  37  Md.  25;  McVeigh  v.  U.  S.,  11  Wall.  259,  ?0  I* 
Ed.  80 ;  Mixer  v.  Sibley,  53  111.  61 ;  McNair  v.  Toler,  21  Minn.  175. 


470  PERSONS  NON   COMPOTES  MENTIS  AND   ALIENS.  (Ch.  15 

held  that,  to  defeat  a  suit  by  a  resident  subject  of  a  foreign  hostile 
power,  it  must  appear  that  he  is  adhering  to  the  enemy;  that  aliens  res- 
ident in  the  United  States  at  the  time  of  war  breaking  out  between 
their  country  and  the  United  States,  or  who  come  to  reside  in  the  Unit- 
ed States  after  the  breaking  out  of  war,  under  an  express  permission,  or 
permission  implied  from  their  being  allowed  to  remain,  may  sue  and 
be  sued  as  in  time  of  peace,  since  a  license  and  protection  will  be  im- 
plied from  their  being  allowed  to  remain.^" 

Whether  a  pre-existing  contract  is  dissolved  by  the  war  depends  up- 
on whether  it  is  essentially  antagonistic  to  the  laws  governing  a  state 
of  war.  If  it  is  of  a  continuing  nature,  like  a  contract  of  partnership, 
or  of  an  executory  character  merely,  and  in  the  performance  of  its  es- 
sential features  would  violate  such  laws,  it  is  dissolved ;  but  if  not, 
and  rights  have  become  vested  under  it,  the  contract  will  either  be 
qualified,  or  its  performance  suspended,  according  to  its  nature,  so  as 
to  strip  it  of  its  objectionable  features,  and  save  such  rights.  The 
tendency  of  adjudication  is  to  preserve,  and  not  to  destroy,  contracts 
existing  before  the  war.®* 

Naturalisation. 

An  alien  may  cease  to  be  such,  and  become  a  citizen  by  naturaliza- 
tion in  compliance  with  our  laws.  The  Constitution  of  the  United 
States  provides  that  "Congress  shall  have  power  to  establish  an  uni- 
form rule  of  naturalization."  *^  This  grant  of  power  is  exclusive, 
and  deprives  a  state  of  the  power  to  enact  laws  on  the  subject."^  But, 
so  far  as  a  state  alone  is  concerned,  it  may  pass  laws  entitling  an  un- 
naturalized alien  to  all  the  rights  which  the  constitution  and  laws  of 
the  state  attach  to  the  character  of  a  citizen."*    Under  this  grant,  Con- 


60  Clarke  v.  Morey,  10  Johns.  (N.  Y.)  69. 

«i  Clark,  Cont.  21S.  See  Mutual  Ben.  Life  Ins.  Oo.  ▼.  Hlllyard,  37  N.  J. 
Law,  444,  18  Am.  Rep.  741 ;  Griswold  v.  Waddington,  15  Johns.  (N.  Y.)  57 ; 
Semmes  v.  Insurance  Co.,  36  Conn.  543,  Fed.  Cas.  No.  12,651;  Bank  of  New- 
Orleans  V.  Matthews,  49  N.  Y.  12;  Cohen  v.  Insurance  Co.,  50  N.  Y.  610,  10 
Am.  Kep.  522;  Washington  University  v.  Finch,  18  Wall.  106,  21  L.  Ed.  818; 
Whelan  v.  Cook,  29  Md.  1;  Dorsey  v.  Kyle,  30  Md.  512,  96  Am.  Dec.  617; 
Dorsey  v.  Thompson,  37  Md.  25. 

«2  Article  1,  §  8,  cl.  4. 

«8  Chirac  v.  Chirac's  Lessee,  2  Wheat.  259,  4  L.  Ed.  234;  Thurlow  v.  Massa- 
chusetts, 5  How.  585,  12  L.  Ed.  256. 

«♦  Per  Taney,  G.  J.,  In  Dred  Scott  v.  Sandford,  19  How.  393,  15  L.  Ed.  691. 


i 


§§  247-262)  ALIENS.  471 

gress  has  enacted  naturalization  laws,  by  which  aliens  may  be  ad- 
mitted to  citizenship.®" 

When  an  alien  is  naturalized  under  the  laws  of  the  United  States, 
he  becomes  not  only  a  citizen  of  the  United  States,  but  also  a  citizen 
of  the  state  in  which  he  resides.  Under  the  fourteenth  amendment  of 
the  Constitution,  which  overrides  state  laws,  "all  persons  born  or  nat- 
uralized in  the  United  States,  and  subject  to  the  jurisdiction  thereof, 
are  citizens  of  the  United  States,  and  of  the  state  wherein  they  re- 
side." 

Naturalization  has  a  retroactive  effect,  and  removes  the  effect  of 
the  party's  alienage,  so  as  to  confirm  his  title  to  land  acquired  prior 
thereto,  and  to  waive  all  liability  to  forfeiture  by  the  state."  But 
it  cannot  remove  his  disability  to  inherit  retroactively,  for  the  capac- 
ity to  take  by  descent  must  exist  at  the  time  the  descent  happens.®^ 

98  U.  S.  Ck)mp.  St  1901,  §§  2165-2174. 
««  Jackson  v.  Beach,  1  Johns,  Cas.  (N.  Y.)  899. 

•  T  People  V.  Conklln,  2  Hill  (N.  Y.)  67.  "Naturalization,"  It  was  said  In 
this  case,  "though  it  may  confirm  a  defective  title,  wni  not  confer  an  estate." 


Part  V. 


MASTER  AND  SERVANT. 


TrBT.P.&  D.Rbl.  (2d  Ed.)  (473)* 


§§  253-255) 


MASTER  AND  SERVANT, 


475 


CHAPTER  XVI. 
MASTER  AND  SERVANT. 

^3-2o5.  The  Relation  Defined- 

256.  Statutory  Regulation. 

257-258.  Creation  of  tlie  Relation. 

250-261.  Termination  of  the  Relation. 

262-263.  Remedies  for  Breach  of  Contract — Damages. 

264.  In  Equity — Specific  Performance — Injimctlon, 

265-271.  Rights,  Duties,  and  Liabilities  inter  Se. 
272-275.  Master's  Liability  for  Injuries  to  Servant. 

276.  Rights  of  Master  against  Third  Persons. 

277.  Rights  of  Servant  against  Third  Persona. 
278-279.  Master's  Liability  to  Third  Persons. 
280-281.  Servant's  Liability  to  Third  Persons. 


THE   RELATION   DEFINED, 

253.  Servants  may  be  classified  as-* 

(a)  Apprentices  and 

(b)  Hired  servants. 

254.  An  apprentice  is  a  person,  nsnally  a  minor,  bonnd  to  a  master  to 

learn  an  art  or  trade,  and  to  serve  bim  during  tbe  time  of  bis 
apprenticesbip. 

255.  Tbe  relation  of  master  and  servant,  otber  tban  apprentices,  de- 

pends entirely  npon  agreement  between  tbe  parties,  express  or 
implied.  It  exists  wbere  one  person  enters  into  tbe  service  of 
anotber,  and  devotes  to  bim  bis  personal  labor. 

The  relation  of  master  and  servant  has  from  a  very  early  period 
been  classed  with  that  of  husband  and  wife,  parent  and  child,  and 
guardian  and  ward,  as  one  of  the  domestic  relations ;  and  it  is 
still  so  treated  in  modern  text-books,  and  in  some  of  the  modern 
codes.  This  classification  is  accurate  enough  when  applied  to  slaves, 
apprentices,  and  domestic  servants,  but  it  is  not  accurate  when  ap- 
plied to  other  servants,  like  clerks  in  stores  and  offices,  laborers, 
employes  of  railroad  companies,  and  many  other  employes  who 
are  subject  to  the  law  governing  the  relation  of  master  and  servant.^ 


1  Frank  v.  Herold,  63  N.  J.  Eq.  443,  52  Atl.  152,  where  it  is  said  that  any 
person  who  works  for  another  for  a  salary  is  a  servant  in  the  eye  of  the  law. 


476  MASTER  AND  SERVANT.  (Ch.  16 

Accuracy  in  classification,  however,  must,  in  this  as  in  many  other 
cases,  yield  to  usage,  and  the  law  applicable  to  all  kinds  of  serv- 
ants will  be  considered. 

Blackstone,  after  referring  to  slavery,  and  showing  that  it  can- 
not exist  in  England,  divides  servants  into  (1)  menial  servants,  so 
called  from  being  intra  moenia,  or  domestics,  who  are  generally 
hired  by  the  year;  (2)  apprentices,  who  are  usually  bound  for  a 
term  of  years,  by  deed  indented  or  indentures,  to  serve  their  mas- 
ters, and  to  be  maintained  and  instructed  by  them;  (3)  laborers, 
who  are  only  hired  by  the  day  or  the  week,  and  do  not  live  intra 
moenia,  as  part  of  the  family;  and  (4)  stewards,  factors,  and  bail- 
iffs, who  are  employed  rather  in  a  superior  and  ministerial  capacity, 
and  whom  the  law  considers  as  servants  pro  tempore,  with  re- 
gard to  such  of  their  acts  as  affect  their  master's  or  employer's 
property.*  Reeve  divides  servants  into  (1)  slaves,  (2)  apprentices, 
(3)  menial  servants,  (4)  day  laborers,  and  (5)  agents  of  any  kind.' 
Kent  divides  them  into  (1)  slaves,  (2)  hired  servants,  and  (3)  appren- 
tices.* This  is  the  best  classification,  as  hired  servants  include  all 
the  other  kinds  mentioned  by  Blackstone  and  Reeve,  except  slaves 
and  apprentices.  Under  the  constitution  of  the  United  States,  slav- 
ery can  no  longer  exist  in  this  country,"*  and  it  is  therefore  unnec- 
essary to  consider  that  class.  There  remain,  then,  to  be  considered 
apprentices  and  hired  servants. 

Apprentices. 

Apprentices  are  persons,  generally  infants,  bound  to  a  master  for 
a  term  of  years  to  learn  some  art  or  trade,  and  to  serve  the  mas- 
ter and  be  maintained  by  him  during  the  term  of  the  apprentice- 
ship. It  has  been  said  that  at  common  law  an  apprentice,  to  be 
holden,  must  be  bound  by  deed ;  ^  but  this  is  doubtful,  and  there 
are  cases  which  hold  that  a  writing  not  under  seal  is  sufficient.' 
At  common  law,  indentures  of  apprenticeship  are  executed  by  the 
father  or  guardian  of  the  minor  and  the  master.     The  former  are 

s  1  Bl.  Comm.  425-427.  »  Reeve,  Dom.  Rel.  (4th  Ed.)  418. 

4  1  Kent,  Comm.  247. 

B  Ameud.  art.  13,  of  the  federal  Constitution,  declares  that  "neither  slavery 
nor  involuntary  servitude,  except  as  a  punishment  for  crime  whereof  the 
party  shall  have  been  duly  convicted,  shall  exist  within  the  United  States^ 
or  any  place  subject  to  their  jurisdiction." 

e  Reeve,  Dom.  Rel.  (4th  Ed.)  420. 

T  Crombie  v.  McGrath,  139  Mass.  550,  2  N.  El  100. 


§§    253-255)  THE    RELATION    DEFINED.  477 

bound  that  the  apprentice  shall  render  the  services  contracted  for; 
and  the  master  is  bound  to  teach  the  art  or  trade  agreed  upon,  and 
do  whatever  else  he  may  have  bound  himself  to  do.  For  a  breach 
by  either  party,  the  other  may  maintain  an  action  for  damages. 
At  common  law  the  minor  need  not  join  the  indenture;  and  by 
the  better  opinion,  even  were  he  to  do  so,  he  would  not  be  bound. 
For  a  breach  on  his  part,  the  remedy  is  against  the  parent.*  The 
common  law  in  relation  to  apprenticeship  is  no  longer  of  much 
importance,  for  the  subject  is  almost  entirely  regulated  by  stat- 
ute both  in  England  and  in  this  country.  There  are  statutes  in 
most  states,  if  not  in  all,  providing  for  the  binding  out  of  appren- 
tices by  contract  between  the  parent  or  guardian  and  the  master. 
And  in  most  states,  if  not  in  all,  there  are  statutes  providing  for 
the  binding  out  of  poor  persons  by  the  overseers  of  the  poor  or  other 
public  officers.  The  master  has  a  right  to  the  services  of  his  ap- 
prentice, and  to  all  wages  earned  by  the  apprentice  from  others ;  ® 
but  he  cannot  assign  the  services  of  the  apprentice  to  another.^" 
The  right  to  the  services  of  the  apprentice  gives  the  master,  as 
in  the  case  of  other  servants,  a  right  of  action  against  any  person 
who  entices  the  apprentice  away  from  him,  or  knowingly  harbors 
him  if  he  has  left  without  cause."  It  also  gives  him  a  right  of 
action  against  any  one  who  wrongfully  injures  the  apprentice,  and 
thereby  causes  a  loss  of  his  services.^ ^ 

Hired  Servants. 

The  relation  of  master  and  servant,  other  than  master  and  ap- 
prentice, depends  upon  a  contract  of  hiring,  express  or  implied, 
between  the  parties. ^^  The  servant  agrees  with  the  master  to  ren- 
der certain  services,  and  the  master  agrees  to  pay  therefor.  Or  the 
service  may  be  gratuitous.  "A  servant  is  one  who  is  employed  to 
render  personal  services  to  his  employer,  otherwise  than  in  the  pur- 
suit of  an  independent  calling,  and  who,  in  such  service,  remains 
entirely  under  the  control  and  direction  of  the  latter,  who  is  called 


8  See  Reeve,  Dom.  Rel.  (4th  Ed.)  420-423,  and  American  notes. 
»  Reeve,  Dom.   Rel.  (4th  Ed.)  423.     And  see  Bardwell  v.  Purringtou,  107 
Mass.  419. 

10  Reeve,  Dom.  Rel.   (4th  Ed.)  425,  426,  and  notes;    Randall  v.  Rotch,  29 
Mass.  (12  Pick.)  107 ;  Turner  v.  Smithers,  3  Houst  (Del.)  430. 

11  Post.  p.  536.  12  Post,  p.   536.  is  Post.   p.  479. 


478  MASTER  AND  SERVANT.  (Ch.  16 

his  'master.'"**  The  term  "servant"  includes,  not  only  menial  and 
domestic  servants,  but  all  other  employes  who  are  hired  or  who 
volunteer  to  perform  services  for  their  employer,  and  who  remain 
under  his  direction  and  control  during  the  time  for  which  they  are 
hired."  Thus,  it  includes  a  bookkeeper  or  clerk  in  a  business  ofhce,  a 
salesman  in  a  shop,  railroad  employes,  workmen  in  factories,  etc. 
All  such  employes  are  subject  to  the  law  governing  the  relation  of 
master  and  servant. 

STATUTORY  REGULATION. 

256.  Tlie  state,  by  virtue  of  tlie  police  power,  may  make  sucli  regula- 
tions controlling  the  relation  of  master  and  servant  as  may  be 
necessary  to  preserve  the  public  health,  safety,  or  general  wel- 
fare. 

In  many  states  statutes  have  been  enacted  regulating  the  rela- 
tion of  master  and  servant  in  matters  pertaining  to  the  employment 
of  children  and  women,  and  the  hours  of  labor,  and  intended  to 
insure  the  public  welfare  and  the  health  and  safety  of  employes. 
Such  statutes  are  generally  held  to  be  valid  exercises  of  the  police 
power  of  the  state,*'  and  unless  open  to  some  special  objection  are 
constitutional.*^ 

1*  Civ,  Code  Cal.  §  2009.  The  relation  of  master  and  servant  exists  wlien 
the  master  not  only  has  the  right  to  select  his  servant,  but  has  power  to 
remove  and  discharge  him.  A  master  is  one  who  stands  to  another  in  such 
relation  that  he  not  only  controls  the  result  of  the  worli  of  that  other,  but 
also  may  direct  the  manner  in  which  it  shall  be  done.  McCoUigan  v.  Penn- 
sylvania R.  Co.,  214  Pa.  229,  63  Atl.  792,  6  K  R.  A.  (N.  S.)  544,  112  Am.  St. 
Rep.    739. 

iBFranlc  v.  Herold,  03  N.  J.  Eq.  443,  52  Atl.  152;  McColligan  v.  Pennsyl- 
vania R.  Co.,  214  Pa.  229,  03  Atl.  792,  G  L.  R.  A.  (N.  S.)  544,  112  Am.  St.  Rep. 
739. 

10  People  V.  Smith,  108  Mich.  527,  G6  N.  W.  382,  32  L.  R.  A.  8.53,  G2  Am.  St. 
Rep.  715;  Andricus'  Adm'r  v.  Pineville  Coal  Co.,  121  Ky.  724,  90  S.  W.  233; 
Green  v.  American  Car,  etc.,  Co.,  1G3  Ind.  135,  71  N.  E.  2US;  Lenahan  v. 
Pittston  Coal  ,Min.  Co..  218  Pa.  311,  G7  Atl.  642,  12  L.  R.  A.  461,  120  Am. 
St.  Rep.  885. 

17  Ex  parte  Kair,  28  Nev.  425,  82  Pac.  453  (construing  Laws  1903,  p.  33, 
c.  10);  State  v.  Livingston  Concrete  Bldg.  &  Mfg.  Co.,  34  Mont.  570,  87  Pac. 
980  (construing  Laws  1905,  p.  105,  c.  50) ;  Wenham  v.  State,  65  Neb.  394,  91 
N.  W.  421,  58  L.  R.  A.  825  (construing  Act  March  31,  1899  [Laws  1899,  p.  362, 
c.  107]  relating  to  employment  of  women);  Holdeu  v.  Hardy,  1G9  U.  S.  366, 
18  Sup.  Ct.  383,  42  L.  Ed.  780,  affirming  14  Utah,  71,  46  Pac.  756,  37  L.  R.  A. 


§§   267-258)  CREATION   OP  THE   RELATION.  479 


CREATION    OF   THE   RELATION. 

257.  The  relation  of  master  and  servant,  except  in  the  case  of  appren- 

ticeship, is  created  by  a  contract  of  hiring  between  the  parties. 
This  contract  is  governed  by  the  principles  of  law  which  apply 
to  contracts  generally. 

(a)  The  contract  may  be  either — 

(1)  Express,    as    'where    it    is    evidenced    by    w^ritten    or    spoken 

w^ords,  or 

(2)  Implied,  as  where  it  is  evidenced  by  conduct. 

(b)  To  be  binding  as  between  the  parties,  there  must  be  a  considera- 

tion. 

(c)  The  contract  is  subject  to  the  general  rules  in  regard  to  the  ca- 

pacity of  parties  to  contract. 

(d)  And  it  is  subject  to  the  general  rules  concerning  mistake,  fraud, 

etc. 

(e)  The  object  of  the  agreement  must  not  be  unlawful. 

(f)  Under  the  statute  of  frauds,  a  contract  of  hiring  that  cannot  be 

performed  within  a  year  must  be  in  writing. 

258.  If  a  person  enters  the  service  of  another  at  the  other's  request, 

the  relation  of  master  and  servant  exists  for  the  time  being, 
though  the  services  are  intended  to  be  gratuitous;  but  in  such 
a  case  there  is  no  right  to  w^ages. 

The  relation  of  master  and  apprentice  has  already  been  explained. 
To  constitute  the  relation  of  master  and  servant  in  other  cases,  a 
contract  or  agreement  between  them,  express  or  implied,  is  essen- 
tial.^' The  relation  can  only  arise  upon  an  agreement  between  the  par- 
ties. A  man  cannot  compel  another  to  labor  for  him;  nor,  on  the 
other  hand,  can  a  person  perform  services  for  another  without  his 
consent,  and  compel  him  to  pay  for  them.^"     So,  it  has  been  held 

103  (holding  Utah  "eight-hour  law"  constitutional) ;  People  v.  Lochner,  177 
N.  Y.  145,  60  N.  E.  373,  101  Am.  St.  Rep.  773.  But  see  People  v.  Williams, 
389  N.  Y.  131,  81  N.  E.  778,  12  L.  R.  A.  (N.  S.)  1130,  121  Am.  St  Rep.  854 
(declaring  unconstitutional  a  statute  relating  to  the  employment  of  women 
between  9  p.  m.  and  6  a.  m.). 

18  Pennsylvania  Co.  v.  Dolau.  6  Ind.  App.  109,  32  N.  B.  802,  51  Am.  St.  Rep. 
289;  Sax  v.  Detroit,  G.  H.  &  M.  R.  Co.,  125  Mich.  252,  84  N.  W.  314,  84  Am. 
St.  Rep.  572;  Louisville  &  N.  R.  Co.  v.  Pendleton's  Adm'r,  104  S.  W.  3S2,  31 
Ky.  Law  Rep.   1025. 

18  Clark,  Cont.  30;  Bartholomew  v.  Jackson,  20  Johns.  (N.  Y.)  28,  11  Am. 
Dec.  237;  Taylor  v.  Laird,  Law  J.  25  Exch.  329;  Oaldwell  v.  Eneas,  2  Mill. 
Const.  (S.  C.)  348,  12  Am.  Dec.  681- 


480  MASTER  AND  SBRVANT.  (Ch.  16 

that  if  a  servant  of  one  man  engages  in  temporary  work  for  another, 
on  the  false  representation  of  the  latter  that  his  master  has  directed 
him  to  do  so,  he  does  not  thereby  become  a  servant  of  the  other,  so 
as  to  be  held  to  assume  the  risk  of  negligence  on  the  part  of  the  oth- 
er servants  of  such  person.^"  A  person  may  be  a  servant  of  another 
though  his  services  are  merely  gratuitous.  If  a  person  engages  in  the 
service  of  another  at  the  latter's  express  or  implied  request,  though 
only  for  a  temporary  purpose,  and  with  the  understanding  that  he 
is  to  receive  no  compensation,  he  will  not  be  entitled  to  wages,  but 
the  relation  of  master  and  servant  will  exist,  for  other  purposes.  For 
instance,  he  will  be  entitled  to  recover  like  any  other  employe  for 
personal  injuries  caused  by  the  master's  negHgence;*^  and  he  will 
become  a  fellow  servant  of  other  employes  so  as  to  assume  the  risk 
of  their  negligence ;  ^'  and  the  master  will  be  liable  to  third  persons 
for  his  negligence  or  wrongful  acts  in  the  course  of  the  employ- 
ment.^' 

Implied  Contract. 

The  contract  need  not  be  express— that  is,  it  need  not  be  evidenced 
by  written  or  spoken  words;  but,  like  other  contracts,  it  may  be  im- 
plied from  the  conduct  of  the  parties.  Thus,  if  a  man  labors  for  an- 
other, at  the"  other's  request,  or  with  the  other's  knowledge  and  ac- 
quiescence, and  under  such  circumstances  that  the  other  ought  rea- 
sonably to  know  that  compensation  is  expected,  the  law  will  imply 
a  contract,  and  compensation  may  be  recovered.'*  The  contract  in 
such  cases  is  implied  as  a  matter  of  fact,  and  there  must  be  nothing 
to  show  that  no  contract  was  intended.*"     If  services  are  performed 

20  Kelly  V.  Johnson,  128  Mass.  550,  35  Am.  Rep.  39S. 

21  Johnson  v.  Water  Co.,  71  Wis.  553,  37  N.  W.  S23,  5  Am.  St.  Rep  243. 
2  2  Post,  p.  524.  £8  Post,  p.  540. 

24  Clark,  Cont  25;  Day  v.  Catou,  119  Mass.  513,  20  Am.  Rep.  347;  Huck 
V.  Plenty e,  80  111.  258;  Tucker  v.  Preston,  60  Vt.  473,  11  Atl.  726;  McMillan 
V.  Page,  71  Wis.  655,  38  N.  W.  173;  Jineey  v.  Winfield's  Adm'r,  9  Grat.  (Va.) 
70S;  Curry  v.  Curry,  114  Pa.  367,  7  Atl.  61. 

2  8  See  note  to  Orr  v.  Brown,  16  C.  C.  A.  201;  Cicotte  v.  Catholic  Church, 
GO  Mich.  552.  27  N.  W.  682;  Gross  v.  Cadwell,  4  Wash.  670,  30  Pac.  1052. 
Thus,  it  has  been  held  that  where  parties  are  in  the  habit  of  mutually  re- 
ceiving and  rendering  services,  with  no  present  thought  of  charging  or  pay- 
ing therefor,  no  recovery  can  be  had  by  either  for  services  rendered,  unless 
a  special  contract  is  shown,  or  there  are  circumstances  which  rebut  the  in- 
ference arising  from  their  course  of  conduct  that  the  services  were  intended 
to  be  gratuitous.    Gross  v.  Cadwell,  supra.    See,  also,  Potter  v.  Carpenter,  76 


§    267-258)  OKEATION    OF   THE    RELATION.  481 

for  another  without  his  knowledge,  no  contract  will  be  implied.*'  If 
the  parties  stand  in  a  family  or  quasi  family  relation  towards  each  oth- 
er, and  the  services  consist  in  household  or  other  family  duties 
performed  by  one  for  the  other,  the  presumption  is  that  no  compen- 
sation was  intended;  and,  in  order  to  recover  therefor,  a  contract 
must  be  shown  afhrmatively.'^  The  presumption  in  such  cases  may 
be  rebutted,  however,  not  only  by  showing  an  express  contract,  but 


N.  T.  157;  Dunlap  v.  Allen,  90  111.  108;  Covel  v.  Turner,  74  Mich.  408,  41  N. 
W.  1091.  In  Raysor  v.  Lumber  Co.,  26  S.  C.  610,  2  S.  E.  119,  the  plaintiff, 
who  was  already  employed  by  defendant,  demanded  an  increase  of  wages 
to  commence  January  1,  1885,  and  gave  due  notice  to  defendant's  agent  that 
he  would  leave  unless  such  increase  was  made.  The  agent  did  not  assent, 
but  said  that  he  would  give  an  answer  in  two  or  three  days.  He  failed  to 
give  any  answer  for  several  months,  and  allowed  plaintiff  in  the  meanwhile 
to  continue  at  work.  Then  plaintiff  Avas  told  that  his  salary  would  be  in- 
creased as  demanded,  but  to  commence  May  1,  1885.  It  was  held  that  the 
silence  of  the  agent  did  not  raise  any  implication  of  assent  on  the  part  of 
the  defendant  to  an  increase  of  salary  from  January  1st,  since  the  services, 
In  the  absence  of  an  express  new  contract,  would  be  referred  to  the  existing 
contract. 

26  Taylor  v.  Laird,  Law  J.  25  Exch.  329;  Bartholomew  v.  Jackson,  20  Johns. 
(N.  Y.)  28,  11  Am.  Dec.  237;   Willis  v.  Railway  Co.,  72  Mich.  KX),  40  N.  W.  205. 

2T  Clark,  Oont.  28,  and  cases  there  cited;  note  to  Orr  v.  Brown,  16  C.  C.  A. 
202,  collecting  cases;  Ulrich  v.  Arnold,  120  Pa.  170,  13  Atl.  831;  Heffron 
V.  Brown,  155  111.  322,  40  N.  m  583;  Dunlap  v.  Allen,  90  111.  108;  Harris  v. 
Smith,  79  Mich.  54,  44  N.  W.  169,  6  L.  R.  A.  702.  This  principle  is  clearly 
applicable  where  the  parties  occupy  the  relation  of  parent  and  child.  See 
Ulrich  V.  Arnold,  120  Pa.  170,  13  Atl.  831 ;  Bantz  v.  Bantz,  52  Md.  693 ;  Cow- 
an V.  Musgrave,  73  Iowa,  384,  35  N.  W.  496;  Howe  v.  North,  69  Mich.  272, 
37  N.  W.  213;  Allen  v.  Alleu,  60  Mich.  635,  27  N.  W.  702;  Bostwick  v.  Bost- 
wick's  Estate,  71  Wis.  273,  37  N.  W.  405;  Curry  v.  Curry,  114  Pa.  367,  7  Atl. 
61.  The  same  presumption  arises  where  one  of  the  parties  stands  in  loco 
parentis  to  the  other.  Harris  v.  Smith,  79  Mich.  54,  44  N.  W.  169,  6  L.  R.  A 
702;  Dodson  v.  McAdams,  96  N.  G.  149,  2  S.  E.  453,  60  Am.  Rep.  408;  Ormsby 
V.  Rhoades,  59  Vt.  505,  10  Atl.  722;  Barhite's  Appeal,  126  Pa.  404,  17  Atl. 
617.  And  it  arises  where  the  parties  are  but  distantly  related,  or  not  re- 
lated at  all,  but  the  connection  between  them  is  of  a  household  or  family  na- 
ture. Feiertag  v.  Feiertag,  73  Mich.  297,  41  N.  W.  414;  Bruner  v.  Mosner, 
116  App.  Div.  298,  101  N.  Y.  S.  538;  Collar  v.  Patterson,  137  111.  403,  27  N. 
E.  604;  Cone  v.  Cross,  72  Md.  102,  19  Atl.  391;  Disbrow  v.  Durand,  54  N.  J. 
Law,  343,  24  Atl.  545,  33  Am.  St.  Rep.  678 ;  Gerz  v.  Weber,  151  Pa.  396,  25  Atl. 
82;  CoUyer  v.  Oollyer,  113  N.  Y.  442,  21  N.  E.  114;  Covel  v.  Turner,  74  Mich. 
408,  41  N,  W.  1091. 

TIFF.P.&  D.Rel.(2d  Ed.)— ^1 


482  MASTER  AND  SERVANT.  (Ch.  16 

also  by  showing  circumstances  and  conduct  from  which  it  may  be  in- 
ferred that  there  was  an  agreement  for  compensation.*' 

If,  after  expiration  of  a  contract  of  hiring  for  a  specified  period, 
the  servant  continues  in  the  master's  service  with  his  consent  or  ac- 
quiescence, without  any  further  express  agreement,  a  new  contract 
of  hiring,  on  the  same  terms  and  for  the  same  period  as  the  former 
one,  will  be  implied,  unless  there  are  special  circumstances  showing 
a  contrary  intention.**  Thus,  if  the  nature  of  the  services  to  be 
rendered  is  entirely  different,  the  presumption  will  not,  as  a  rule, 
arise.^**  And  generally  the  presumption,  being  one  of  fact,  may  be 
rebutted  by  evidence  of  circumstances,  showing  a  contrary  inten- 
tion.^^ 

Validity  of  the  Contract — Mutual  Assent — Consideration — Capacity  of 

Parties — Reality  of  Consent — Illegality. 

The  contract  of  hiring  is  governed  by  all  the  principles  of  law 
which  apply  to  other  contracts.  In  the  first  place,  there  must  be  mu- 
tual assent,  or  offer  and  acceptance.^*     As  has  just  been  seen,  how- 

2  8  See  Heffron  v.  Brown,  155  111.  322,  40  N.  E.  583;  McMillan  v.  Tage,  71 
Wis.  655,  38  N.  W.  173;   Guild  v.  Guild,  15  Pick.  (Mass.)  129. 

2»Appleton  Waterworlis  Co.  v.  City  of  Appleton,  132  Wis.  503,  113  N.  W. 
44;  Fish  v.  Marzluff,  128  Til.  App.  .549;  Houston  Ice  &  Brewing  Co.  v.  Nico- 
lini  (Tex.  Civ.  App.)  9G  S.  W.  84;  Mendelson  v.  Bronner,  124  App.  Div.  390, 
108  N.  Y.  Supp.  807 ;  Treffinger  v.  M.  Groh's  Sons,  112  App.  Div.  250,  98  N.  Y. 
Supp.  291 ;  Douglass  v.  Merchants'  Ins.  Co.,  118  N.  Y.  484,  23  N.  E.  800,  7  I* 
R.  A.  822;  Ingalls  v.  Allen,  132  III.  170,  23  N.  E.  1020;  Weise  v.  Supervisors, 
51  Wis.  504,  8  N.  W.  295;  Wallace  v.  Floyd,  29  Pa.  184,  72  Am.  Dec.  G20; 
iSicholsou  v.  Patchin,  5  Cal.  474;  Huntingdon  v.  Claffin,  38  N.  Y.  182;  Stand- 
ard Oil  Co.  v.  Gilbert,  84  Ga.  714,  11  S.  E.  491,  S  L.  R.  A.  410;  Lalande  v. 
Aldrich,  41  La.  Ann.  307,  6  South.  28;  Grover  &  Baker  Sewing  Mach.  Oo.  v. 
Bulkley,  48  111.  189;  Sines  v.  Superintendents  of  Poor,  58  Mich.  503,  25  N. 
W.  485;  Adams  v.  Fitzpatrick  (Super.  N.  Y.)  5  N.  Y.  Supp.  181;  Hodge  v. 
Newton,  14  Daly  (N.  Y.)  372;  McCullough  Iron  Co.  v.  Carpenter,  07  Md.  554, 
11  Atl.  176;  Lister's  Agricultural  Chemical  Works  v.  Pender,  74  Md.  15,  21 
Atl.  080. 

30  Ingalls  V.  Allen,  132  111.  170,  23  N.  E.  1026;  Burton  v.  Behan,  47  La. 
Ann.  117,  16  South.  700;  Ewing  v.  Janson,  57  Ark.  237,  21  S.  W.  430;  Reed  v. 
Swift,  45  Cal.  255. 

81  Ingalls  v.  Allen,  132  111.  170,  23  N.  E.  1026;  Hale  v.  Sheehan,  41  Neb. 
102,  59  N.  W.  554;  Home  Fire  Ins.  Co.  v.  Barber,  67  Neb.  644,  93  N.  W.  1024, 
GO  L.  R.  A.  927,  108  Am.  St.  Rep.  716;  Dickinson  v.  Norwegian  Plow  Co.,  96 
Wis.  376,  71  N.  W.  000;   Id.,  101  Wis.  157,  76  N.  W.  1108. 

3  2  Hooker  v.  Hyde,  61  Wis.  204,  21  N.  W.  52;  Ellng  v.  Seaboard  Air  Line 
Ry.  Co.,  140  N.  C.  433,  53  S.  E.  237;   luternatioual  Harvester  Co.  v.  Campbell, 


§§    257-258)  CREATION    OP   THE    RELATION.  483 

ever,  mutual  assent  may  be  implied  from  the  conduct  of  the  parties.** 
There  must  also  be  a  valid  consideration.  The  promise  of  one  par- 
ty to  serve,  and  the  promise  of  the  other  to  permit  him  to  do  so,  and 
to  pay  him,  are  each  a  sufficient  consideration  for  the  other,  for  a 
promise  is  a  sufiicient  consideration  for  a  promise.**  The  promises 
must  be  mutually  binding,  however;  for,  if  there  is  no  mutuality,  a 
contract  of  hiring  is  as  void  as  any  other  contract  would  be.*' 

The  principles  of  law  in  regard  to  the  capacity  of  the  parties  to  a 
contract  apply  with  full  force  to  a  contract  of  hiring.*'  A  contract  of 
hiring  by  an  infant  does  not  bind  him,  but  is  voidable  at  his  option.'^ 
He  may  at  any  time  repudiate  the  contract,  and  recover  on  the  quan- 
tum meruit  for  the  services  rendered.  The  adult  is  bound  if  the  in- 
fant chooses  to  hold  him.** 

The  contract  of  hiring  is  affected,  like  other  contracts,  by  fraud, 
duress,  and  mistake,*®  and,  like  other  contracts,  it  must  not  be  ille- 
gal.*" For  instance,  a  contract  to  serve  another  in  a  business  which  is 
unlawful,  as  in  selling  intoxicating  liquors  in  violation  of  law,  or  in 
conducting  a  gambling  house  or  lottery  or  bawdy  house,  could  not  be 
enforced,*^  unless  the  servant  were  ignorant  of  the  purpose  or  object 
rendering  the  agreement  unlawful.  In  the  latter  case  he  could  re- 
cover for  services  rendered.*' 


43  Tex.  Civ.  App.  421,  96  S.  W,  93 ;  Smith  v.  Williams,  123  Mo.  App.  479,  100 
S.  W.  55.    See,  as  to  offer  and  acceptance  generally,  Clark,  Cont.  p.  21. 

33  Ante,  p.  480.    And  see  Smith  v.  Williams,  123  Mo.  App.  479,  100  S.  W.  55. 

8*  Clark,  Cont.  165.  The  dismissal  of  a  suit  for  damages,  brought  by  an 
Injured  employfi  of  a  railroad  company,  is  a  sufficient  consideration  for  a 
contract  for  his  future  employment  so  long  as  his  services  are  satisfactory. 
Lake  Erie  &  W.  Ry.  v.  Tierney,  29  Ohio  Cir.  Ct  R.  83. 

8  8  Clark,  Cont.  lGS-171. 

86  Clark,  Cont.  210  et  seq. 

87  As  to  contracts  of  infants  generally,  see  ante,  p.  386. 

8  8  Clark,  Cont.  221  et  seq.;  Derocher  v.  Continental  Mills,  58  Me.  217,  4 
Am.  Uep.  286. 

8»  See  Clark,  Cont.  288  et  seq. 

*o  A  contract  to  give  one  permanent  employment  Is  not  contrary  to  public 
policy.  Pennsylvania  Oo.  v.  Dolan,  6  Ind.  App.  109,  32  N.  E.  802,  51  Am.  St 
Rep.  289. 

41  See  Clark,  Cont.  374;  Spiirgeon  v.  McElwaln,  6  Ohio,  442,  27  Am.  Dec. 
2G0;  Sullivan  v.  Morgan,  37  R.  I.  109,  20  Atl.  232,  9  L.  R,  A,  110;  Bierbauer 
V.  Wirth  (C.  C.)  5  Fed.  336 ;  The  Pioneer,  Deady,  72  Fed.  Cas.  No.  11,177. 

*2  Clark,  Cont.  475;  Emery  v.  Kempton,  2  Gray  (Mass.)  257;  Roys  v. 
Johnson,  7  Gray  (Mass.)  162. 


484  MASTER  AND  SERVANT.  (Ch.  16 

Necessity  for   Written   Contract — Statute   of  Frauds. 

Unless  writing  is  required  by  some  statute,  a  contract  may  be  ei- 
ther in  writing  or  oral,  or  as  we  have  seen,  it  may  be  implied  from 
conduct.  Under  the  statute  of  frauds,  a  contract  not  to  be  performed 
within  a  year  must  be  in  writing,  or  no  action  can  be  maintained  up- 
on it.*'  This  applies,  of  course,  to  contracts  of  hiring.  A  contract 
for  a  year's  service,  to  commence  on  a  future  day,  is  within  the  stat- 
ute ;  **  and  so  is  a  contract  to  begin  as  soon  as  the  employe  can, 
and  actually  beginning  a  week  after  the  agreement.*'  If  the  serv- 
ice is  for  a  year,  and  it  is  agreed  that  it  is  to  commence  at  once,  or 
if  no  time  for  commencement  of  the  service  is  named,  in  which  case  it 
is  to  commence  at  once,  the  contract  is  not  within  the  statute.*'  It 
has  been  held  that  a  contract  for  a  year's  service,  to  commence  the 
day  after  the  agreement  is  made,  is  within  the  statute,  for  the  law 
does  not  regard  fractions  of  a  day ;  *^  but  there  are  decisions  to  the 
contrary.*^  If  the  agreement  may  be  performed  within  the  year,  it 
is  not  within  the  statute.**  If  services  are  performed  under  a  con- 
tract within  the  statute,  there  may  be  a  recovery  on  the  quantum 
meruit.''** 

4  3  Clark,  Oont  lOa 

44  Snelling  v.  Lord  Huntlngfleld,  1  CJromp,  M.  &  R.  19;  Bracegirdle  t. 
Heald,  1  Bam.  &  Aid.  723;  Sutcllffe  v.  Atlantic  Mills,  13  R.  I.  480,  43  Am. 
Rep.  39:  Kleeman  v.  Collins,  9  Bush  (Ky.)  460;  Nones  v.  Homer,  2  Hilt. 
(N.  Y.)  116;  Broadwell  v.  Getman,  2  Denio  (N.  Y.)  87;  Comes  v.  Lamson,  16 
Conn.  246;   Sharp  v.  Rhiel,  55  Mo.  97;   Hearne  v.  Chadbourne,  65  Me.  302. 

4  5  Sutcliffe  V.  Atlantic  Mills,  13  R.  1.  480. 

4  8  Russell  V.  Slade,  12  Conn.  45-5. 

4  7  Dickson  v.  Frisbee,  52  Ala.  165,  23  Am.  Rep.  565;  Cawthorne  v.  Cordrey, 
13  C.  B.  (N.  S.)  406. 

4  8  Billington  v.  Cahill,  51  Hun,  132,  4  N.  Y.  Supp.  660. 

4  8  Clark,  Cont.  109-111.  As  an  agreement  to  work  for  a  company  "for 
five  years,  or  so  long  as  A.  shall  continue  to  be  agent  for  the  company," 
Roberts  v.  Rockbottom  Co.,  7  Mete.  (Mass.)  47;  or  an  agreement  to  employ 
a  person  so  long  as  he  may  be  disabled  from  an  Injury  which  he  has  re- 
ceived.   East  Tennessee,  V.  &  G.  R.  Co.  v.  Staub,  7  Lea  (Tenn.)  397. 

50  Clark,  Cont.  Ill,  112,  notes,  and  cases  cited;  Baker  v.  Lauterbach,  68 
Md.  64,  11  Atl.  703;  Towsley  v.  Moore,  30  Ohio  St  185,  27  Am.  Rep.  434. 


§§   269-261)  TBBMINATION    OF   THE    RELATION.  485 

TERMINATION    OF   THE   RELATION. 

259.  A  contract  of  Mring  is  discharged  or  terminated  like  any  otber 

contract.     It  may  be  discharged,  for  instanofr— 

(a)  By  agreement.     And  this  may  be — 

(1)  By  Ttraiver,  cancellation,  or  rescission. 

(2)  By  substituted  agreement. 

(3)  By   the   happening   of   conditions   snbseqnent   in   accordance 

^vith  the  express  or  implied  terms  of  the  contract. 

(b)  By  performance. 

(c)  By  breach. 

(d)  By  impossibility  of  performance  nnder  some  oircnmstances. 

260.  A  breach  of  the  contract  by  the  master  entitles  the  servant  to 

leave.     Snch  a  breach  may  be— 

(a)  By  renouncing  the  contract. 

(b)  By  rendering  performance  or  further  performance  impossible. 

(c)  By  breach  of  particular  terms  of  the  contract,  express  or  implied, 

as  by  failure  to  pay  the  tvages  agreed,  or  by  ill  treatment  of 
the  servant. 

261.  A  breach  of  the  contract  by  the  servant  entitles  the  master  to 

discharge  him.     Such  a  breach  may  be— 

(a)  By  renunciation  of  the  contract. 

(b)  By  rendering  performance   or  further  performance  by  him  im- 

possible. 

(c)  By  breach   of  particular  terms   of  the   contract,  express   or  im- 

plied, as— 

(1)  By  incompetency. 

(2)  By  criminal  or  grossly  immoral  conduct. 

(3)  By  willful  disobedience. 

(4)  By  habitual  neglect. 

The  relation  of  master  and  servant  may  be  determined  in  various 
ways.  It  is  determined  whenever  the  contract  of  hiring  is  dis- 
charged, and  therefore  we  must  refer  to  the  principles  of  law  in 
regard  to  the  discharge  of  contracts  generally. 

Discharge  of  Contract  by  Agreement. 

In  the  first  place,  a  contract  of  hiring  may,  like  other  contracts, 
be  discharged  by  agreement  between  the  parties.  And  this  may 
be  either  (1)  by  subsequent  agreement  waiving,  canceling,  or  re- 
scinding the  contract,  or  substituting  a  new  agreement;  or  (2) 
by  the  happening  of  conditions  subsequent  expressed  or  implied 
in  the  contract."*^ 

•1  See  Clark,  Cont  607-627. 


486  MASTER  AND  SERVANT.  (Ch.  16 

Same — Waiver,  Cancellation,  or  Rescission — Substituted  Agreement. 
A  contract  of  hiring  may  always  be  discharged  by  an  agree- 
ment between  the  parties  to  it  that  it  shall  no  longer  be  binding 
upon  them ;  '^^  but  this  agreement  is  subject  to  the  rule,  which 
governs  all  other  simple  contracts,  that  there  must  be  a  consid- 
eration.•*'  So,  too,  a  resignation,  tendered  by  the  employe  and  ac- 
cepted by  the  employer,  is,  in  the  absence  of  fraud,  duress,  or  mis- 
take, a  binding  contract,  which  terminates  the  employment."*  A 
substitution  of  a  new  contract  of  hiring  is  a  waiver  of  the  prior  con- 
tract, and  the  rights  of  the  parties  are  thereafter  determined  by  the 
new  contract.^'' 

Same — Happening  of  Conditions  Suhsequent. 

A  contract  of  hiring,  like  other  contracts,  may  contain  within 
itself  express  or  implied  provisions  for  its  determination  under  cer- 
tain circumstances.  Such  provisions  are  called  "conditions  subse- 
quent." 

The  contract  may  give  one  of  the  parties  the  right  to  terminate  it 
upon  the  nonfulfillment  of  a  specified  term.  If  the  term  is  not 
fulfilled,  and  the  party  terminates  the  contract,  there  is  no  breach, 
but  the  contract  is  rightfully  determined.^*  If  a  servant  is  em- 
ployed for  a  specified  time  to  carry  on  the  master's  business,  or 
do  other  work,  "to  the  master's  satisfaction,"  the  master  has  a 
right  to  discharge  him  whenever  he  becomes,  in  good  faith,  dis- 
satisfied with  him."^     Some  courts  hold  that  the  master  is  the  sole 

62  Tray  v.  Standard  Electric  Co.,  155  Mass.  561,  30  N.  E.  464.  Therefore, 
if  a  servant  hired  for  a  specified  term  is  discharged  with  his  consent,  he  can- 
not complain,  nor  recover  salary  for  the  remainder  of  the  term.  Soiithmayd 
V.  Insurance  Co.,  47  Wis,  517,  2  N.  W.  1137;  Grannemann  v.  Kloepper,  24  111. 
App.  277. 

6  8  Clark,  Oont.  COS. 

B<  Nevf  York  Life  Ins.  Co,  v.  Thomas  (Tex.  Civ.  App.)  103  S.  W.  423;  Ivey 
V.  Bessemer  City  Cotton  Mills,  143  N.  C.  189,  55  S.  E.  G13. 

66  Clark,  Cont.  UIO,  A  contract  of  hiring  may  be  thus  discharged  either 
by  the  making  of  an  entirely  new  and  independent  contract,  or  by  the  in- 
troduction of  new  terms.  In  the  latter  case  the  new  contract  consists  of 
the  new  terms  and  so  much  of  the  original  contract  as  remains  unchanged. 
Clark,  Cont.  611,  There  need  be  no  express  waiver  of  the  old  contract,  or 
of  some  of  its  terms,  to  constitute  a  discharge  by  substituted  agreement.  A 
new  contract  inconsistent  with  the  original  impliedly  discharges  the  latter. 
Clark,  Cont.  611,  612,  and  cases  there  collected. 

6  8  Clark,  Cont.  622-627. 

6T  Corgan  v.  Geo.  F,  Lee  Coal  Co.,  218  Pa.  386,  67  Atl,  655,  120  Am.  St 


§§    259-261)  TERMINATION    OF   THE    RELATION.  487 

judge  whether  the  servant  is  satisfactory,  and  that  the  courts  can- 
not determine  whether  his  dissatisfaction  was  reasonable."^*  A  hir- 
ing to  last  so  long  as  each  party  is  satisfied  is  a  hiring  at  will,  and 
may  be  terminated  at  any  time  by  either."*  So  the  parties  may  intro- 
duce into  their  contract  a  provision  that  the  occurrence  of  a  speci- 
fied event  shall  terminate  the  contract,  and  discharge  them  both  from 
further  liability  under  it.*° 

A  contract  of  hiring  may  contain  a  provision,  express  or  implied, 
making  it  determinable  at  the  option  of  one  or  either  of  the  par- 
ties upon  certain  terms.  Where  the  contract  expressly  provides 
that  it  may  be  terminated  by  either  party  on  giving  a  specified  no- 
tice, and  the  servant  is  dismissed  on  such  notice,  the  contract  is 
discharged,  and  not  broken.^^     Terms  like  this  need  not  necessari- 

Rep.  891;  Beissel  v.  Vermillion  Farmers'  Hevator  Ck).,  102  Minn.  229,  113 
N.  W.  575,  12  L.  R.  A.  (N.  S.)  403;  Frary  v.  American  Rubber  Co.,  52  Minn. 
2G4,  53  N.  W.  1156,  IS  L.  R.  A  644;  Anvil  Min.  Co.  v.  Humble,  153  U.  S.  540, 
14  Sup.  Ct.  876,  38  L.  Ed.  814.  It  is  sufficient  if  the  master  was  in  good 
faith  dissatisfied,  though  his  dissatisfaction  is  unreasonable.  Starkweather 
T.  Emerson  JIfg.  Co.,  132  Iowa,  266,  109  N.  W.  719.  But  see  Lake  Erie  & 
W.  Ry.  Co.  V.  Tierney,  29  Ohio  Cir.  Ct.  R.  83  (judgment  affirmed  in  75  Ohio 
St  565,  80  N.  E.  1128),  where  it  is  held  that  dissatisfaction  with  the  services 
of  an  employs  engaged  to  render  services  as  long  as  they  were  satisfactory 
such  as  to  justify  a  discharge  must  be  a  reasonable  dissatisfaction,  and  not 
an  arbitrary  one,  and  the  good  faith  of  the  company  in  claiming  such  serv- 
ices to  be  unsatisfactory  will  not  alone  justify  the  discharge,  if  the  services 
rendered  were,  in  fact,  such  as  ought  to  have  been  satisfactory  to  a  reason- 
able employer. 

68  International  Harvester  Co.  v.  Boatman,  122  111.  App.  474;  Saxe  v. 
Shubert  Theatrical  Co.,  57  Misc.  Rep.  620,  108  N.  Y.  Supp.  683;  Watkins  & 
Thurman  v.  Napier,  44  Tex.  Civ.  App.  432,  98  S.  W.  904;  Allen  v.  Mutual  Com- 
press Co.,  101  Ala.  574,  14  South.  362;  Koehler  v.  Buhl,  94  Mich.  496,  54  N. 
W.  157;  Crawford  v.  Mail  &  Express  Pub.  Co.,  163  N.  Y.  404,  57  N.  E.  616, 
distinguishing  Smith  v.  Robson,  148  N.  Y.  252,  42  N.  E.  677,  in  which  the 
contract  expressly  provided  that  there  must  be  good  faith  on  the  part  of  the 
master  in  determining  the  question  of  dissatisfaction. 

68  Evans  v.  Bennett,  7  Wis.  404;  Booth  v.  Ratcliffe,  107  N.  C.  0,  12  S.  E. 
112;  Wilmington  Coal  Min.  &  Mfg.  Co.  v.  Lamb,  90  111.  465. 

•  0  Fuller  v.  Downing,  120  App.  Div.  36,  104  N.  Y.  Supp.  991,  where  tlie  con- 
tract authorized  the  employer  to  terminate  the  contract  on  four  months'  no- 
tice, in  case  he  wished  to  form  a  combination  with  other  manufacturers  in 
the  same  line  of  business,  and  it  was  held  that  the  master  was  bound  to  ex- 
ercise good  faith  in  terminating  the  contract  under  such  provision. 

01  Jenkins  v.  Long,  8  Md.  132;  White  Sewing  Mach.  Co.  v.  Shaddock,  79 
Ark.  220,  95  S.  W.  143.     Provisions  as  to  notice  must  as  a  rule  be  strictly 


488  MASTER  AND   SERVANT.  (Ch.  16 

ly  be  expressed  in  the  contract;  but  they  may  be  imported  into  it 
by  custom  and  usage."^  A  custom  or  usage,  however,  can  never 
affect  a  contract  if  it  is  inconsistent  with  its  terms."  If  the  con- 
tract fixes  no  time  during  which  it  is  to  last,  and  no  time  is  fixed 
by  law  or  by  usage,  it  may  be  determined  at  the  will  of  either  party 
at  any  time ;  the  hiring  being  construed  as  a  hiring  at  will.'*  The 
circumstances  may  show  a  contrary  intention,  and  the  intention 
of  the  parties  must  govern,  of  course.""  The  fact  that  the  wages 
are  payable  at  specified  periods  does  not  necessarily  show  that  the 
hiring  was  for  the  specified  period,  and  not  a  hiring  at  will,  nor, 

complied  with.  Basse  v.  Allen,  43  Tex.  481;  City  of  Indianapolis  v.  Bly,  39 
Ind.  373.  The  provision  may,  of  course,  be  waived.  Nashua  &  L.  R.  Corp. 
V.  Paise,  135  Mass.  145. 

62  Clark,  Cont.  580-586  (where  the  requisites  of  a  custom  or  usage  are 
shown);    Parker  v.  Ibbetson,  4  C.  B.  (N.  S.)  347. 

6  3  Clark,  Cont.  586;  Baltimore  Baseball  Club  &  Elxhibition  Co.  v.  Pickett, 
78  Md.  375,  28  Atl.  279,  22  D.  R.  A.  690,  44  Am.  St.  Rep.  304;  Greenstlne  v. 
Borchard,  50  Mich.  434,  15  N.  W.  540,  45  Am.  Rep.  51;  Seavey  v.  Shurick, 
110  Ind.  494,  11  N.  E.  597. 

6  4  The  Pokanoket,  156  Fed.  241,  84  C.  C.  A.  49;  Odom  v.  Bush,  125  Ga.  184, 
53  S.  E.  1013;  Frank  v.  Manhattan  Maternity  &  Dispensary  (Sup.)  107  N. 
Y.  Supp.  4(M;  Summers  v.  Phenix  Ins.  Co.,  50  Misc.  Rep.  181,  98  N.  Y.  Supp. 
226;  Colfin  v.  Landis,  46  Pa.  426;  Peacock  v.  Oummings,  Id.  434:  Green- 
burg  V.  Early,  4  Misc.  Rep.  99,  23  N.  Y.  Supp.  1009;  Attrill  v.  Patterson,  58 
Md.  226;  Walker  v.  Denison,  86  111.  142;  Fawcett  v.  Cash,  5  Barn.  &  Adol. 
904;  Hathaway  v.  Bennett,  10  N,  Y.  108,  61  Am.  Dec.  739;  Evans  v.  Bennett, 
7  Wis.  404.  A  contract  for  a  specified  period,  "unless  sooner  determined," 
is  not  a  hiring  at  will,  but  is  a  hiring  for  the  period  named.  Niagara  Fire 
Ins.  Co.  v.  Whittaker,  21  Wis.  329.  An  agreement  to  give  a  person  "perma- 
nent" employment  means  nothing  more  than  that  the  employment  is  to  con- 
tinue indefinitely,  and  until  one  or  the  other  of  the  parties  desires,  for  some 
good  reason,  to  sever  the  relation.  Lord  v.  Goldberg,  81  Cal.  596,  22  Pac. 
1126,  15  Am.  St.  Rep.  82;    Bentley  v.  Smith,  3  Ga.  App.  242,  59  S.  E.  720. 

6  5  A.  addressed  a  letter  to  B.,  offering  him  $100  per  month  for  his  services, 
and  stated:  "If  you  give  me  satisfaction  at  the  end  of  the  first  year,  I  will 
increase  your  wages  accordingly."  The  offer  was  accepted  by  B.  The  court, 
in  construing  the  contract,  held  it  a  hiring  for  one  year.  Norton  v.  Cowell, 
65  Md.  359,  4  Atl.  408,  57  Am.  Rep.  331.  In  Smith  v.  Theobald,  86  Ky.  141, 
5  S.  W.  394,  a  letter  engaging  an  hotel  manager  "at  $125  per  month"  show- 
ed upon  its  face  that  the  engagement  contemplated  his  giving  up  another  po- 
sition, removing  with  his  family  to  another  place,  several  hundred  miles 
away,  and  undertaking  there,  besides  his  duties  as  manager,  those  of  sec- 
retary and  treasurer  of  the  hotel  company.  It  was  held  that  the  letter  could 
not  be  construed  as  an  employment  by  the  month  or  at  will,  but  must  be 
held  to  import  an  engagement  by  the  year. 


§§   259-261)  TERMINATION    OF   THE    RELATION.  489 

on  the  other  hand,  that  it  was  not  a  hiring  for  a  longer  period  than 
specified.**  As  we  have  seen,  where  a  servant  who  is  hired  for  a 
specified  period  continues  to  serve  after  expiration  of  the  term 
with  the  master's  consent,  but  without  any  new  arrangement,  a 
contract  for  another  similar  period  will  be  implied,  and  not  a  hiring 
at  will.*^ 

In  every  contract  of  hiring,  certain  provisions  for  discharge  are 
implied.  If  the  servant  proves  incompetent,  or  wrongfully  acts 
in  such  a  way  as  to  injure  the  master's  business,  or  is  otherwise 
guilty  of  breach  of  duty,  the  master  may  rightfully  discharge  him. 
This,  however,  is  a  breach  of  contract  by  the  servant  discharging 
the  master  from  further  liability  under  the  contract,  and  will  there- 
fore be  considered  in  treating  of  discharge  by  breach." 

Discharge  of  Contract  by  Performance. 

The  contract  of  hiring  is  discharged  by  full  performance  by  both 
parties.     If  a  person  is  hired  for  a  specified  time,  and  he  works  for 

•  «  Frank  v.  Manhattan  Maternity  &  Dispensary  (Sup.)  107  N.  Y.  S.  404; 
The  Pokanoket,  156  Fed.  241,  84  C.  C.  A.  49 ;  Summers  v.  Phenix  Ins.  Co.,  50 
Misc.  Rep.  181,  98  N.  Y.  Supp.  226;  Babcock  &  Wilcox  Co.  v.  Moore,  62  Md. 
161;  McCTullough  Iron  Co.  v.  Carpenter,  67  Md.  554,  11  AXL  176;  Beach  v. 
Mullin,  34  N.  J.  Law,  343;  Tatterson  v.  Manufacturing  Co.,  106  Mass.  50; 
Prentiss  v.  Ledyard,  28  Wis.  131;  Thomas  v.  Hatch,  53  Wis.  296,  10  N.  W. 
393;  Haney  v.  Caldwell,  35  Ark.  156;  Larkin  v.  Hecksher,  51  N.  J.  Law,  133, 
16  Atl.  703,  3  L.  R.  A.  137.  Payment  of  wages  quarterly,  monthly,  or  week- 
ly is  not  inconsistent  with  a  yearly  hiring.  Norton  v.  Cowell,  65  Md.  359, 
4  Atl.  408,  57  Am.  Rep.  331;  Tatterson  v.  Manufacturing  Co.,  106  Mass.  56. 
Agreement  to  pay  at  a  yearly  rate  is  not  necessarily  a  hiring  for  a  year. 
Prentiss  v.  Ledyard,  28  Wis.  131.  But  the  time  for  payment  of  wages  will 
determine  the  duration  of  the  employment,  if  there  is  nothing  in  the  case  to 
rebut  the  inference  arising  therefrom.  Cronemillar  v.  Duluth-Superior  Mill- 
ing Co.,  134  Wis.  248,  114  N.  W.  432.  Thus,  a  hiring  for  a  certain  sum  per 
month  or  per  week  is  a  hiring  by  the  mouth  or  week,  as  the  case  may  be, 
if  nothing  is  said  as  to  the  length  of  time  the  service  is  to  continue,  and  no 
other  circumstances  appear.  Magarahan  v.  Wright,  83  Ga.  773,  10  S.  E.  584; 
bdom  V.  Bush,  125  Ga.  184,  53  S.  E.  1013.  A  contract  that  the  servant's 
"salary  from  Nov.  1st  will  be  per  month,  at  the  rate  of  $500  a  year,"  makes 
the  employment  by  the  month.  Pinckney  v.  Talmage,  32  S.  C.  304,  10  S.  E. 
1083. 

«7  Ante,  p.  482,  and  cases  there  cited.  One  who  hires  himself  on  a  contract 
for  a  year,  and  afterwards  continues  without  any  new  contract,  is  again 
impliedly  hired  by  the  year,  and  neither  he  nor  his  employer  can  terminate 
the  engagement  at  his  pleasure.  McCullough  Iron  Co.  v.  Carpenter,  07  Md. 
554,  11  Atl.  176. 

88  Post,  p.  492. 


490  MASTER  AND  SERVANT.  (Ch.  16 

that  time,  and  is  paid,  the  contract  is  at  an  end  without  the  ne- 
cessity of  any  notice.'"  The  parties  may,  however,  make  a  new 
contract  for  a  further  term;  and  such  a  contract  will  be  implied 
if  the  servant  continues  to  labor,  and  the  master  acquiesces.''"'  The 
question  as  to  what  constitutes  sufficient  performance  is  consider- 
ed in  treating  of  breach  of  contract.  As  to  tender  and  payment, 
reference  must  be  made  to  works  on  the  general  law  of  contracts.'^ 

Discharge  of  Contract  by  Breach. 

A  breach,  by  either  party,  of  the  obligations  imposed  by  the  con- 
tract of  hiring,  gives  the  other  party  a  right  of  action  for  any  dam- 
ages he  may  have  sustained,  and  as  a  rule,  though  not  always,  dis- 
charges the  other  party  from  any  further  liability  under  the  con- 
tract." 

Same — Breach  by  Master. 

If  the  master  renounces  the  contract  either  before  the  time  for 
performance,  or  in  the  course  of  performance,  as  by  wrongfully 
discharging  the  servant,  the  servant  may  treat  the  contract  as  brok- 
en and  discharged,  and  sue  at  once  for  damages,  without  holding 
himself  ready  or  offering  to  perform  or  further  perform  the  con- 
tract on  his  part.'^^  The  same  is  true  where  the  master,  either  before 
the  time  for  performance  or  in  the  course  of  performance,  does 
some  act  by  which  he  makes  performance  or  further  performance 

8  9  Ewing  V.  Janson,  57  Ark.  237,  21  S.  W.  430.  And  see  Whitmore  v. 
Werner  (Sup.)  88  N.  Y.  Supp.  373,  and  Dodsou-Braun  Mfg.  Co.  v.  Dix  (Tex. 
Civ.  App.)  76  S.  W.  451,  when  the  hiring  was  by  the  month. 

7  0  Ante,  p.  482. 

Ti  See  aark,  Cont  62&-643. 

T2  Clark,  Cont.  p.  643. 

T»  Clark,  Cont.  646-648;  Hochster  v.  De  la  Tour,  2  El.  &  Bl.  678;  Howard 
T.  Daly,  61  N.  Y.  362,  19  Am.  Rep.  285;  Burtis  v.  Thompson,  42  N.  Y.  246,  1 
Am.  Rep.  516;  Ryan  v.  Dayton,  25  Conn.  188,  65  Am.  Dec.  560;  Grau  v.  Mc- 
Vicker,  8  Biss.  13,  Fed.  Cas.  No.  5,708;  Hosmer  v.  Wilson,  7  Mich.  294,  74 
Am.  Dec-  716;  Jones  v.  Transportation  Co.,  51  Mich.  539,  16  N.  W.  893;  Nil- 
son  v.  Morse,  52  Wis.  240,  9  N.  W.  1;  Hartman  v.  Rogers,  69  Cal.  643,  11  Pac. 
581.  Where  a  servant  is  told  by  his  master  that  their  relations  had  better 
be  discontinued  immediately,  and  thereupon  the  servant,  no  work  being  as- 
signed to  him,  leaves,  he  is  discharged-  Bennett  v.  Morton,  46  Minn.  113, 
48  N.  W.  678.  And  see  Paine  v.  Hill,  7  Wash.  437,  35  Pac.  136.  A  request 
by  the  master  for  the  servant's  resignation,  which  is  given,  is  a  discharge 
of  the  servant  Jones  v.  Transportation  Co.,  51  Mich.  539,  16  N.  W.  893. 
But  see  Wharton  v.  Christie,  53  N.  J.  Law,  007,  23  Atl.  258. 


§§    259-261)  TERMINATION    OF   THE    RELATION.  491 

impossible.^*  If  a  master  wrongfully  discharges  his  servant,  he 
cannot,  by  subsequently  ordering  the  servant  to  return  to  work,  put 
the  servant  in  default.  After  a  wrongful  dismissal  the  contract 
is  discharged,  and  the  servant  need  not  return,  though  requested 
to  do  so.^° 

It  is  a  general  principle  of  the  law  of  contracts  that  renuncia- 
tion of  the  contract  by  one  of  the  parties  does  not  discharge  the 
other  unless  he  choose  to  treat  it  as  a  discharge;  that  it  is  op- 
tional with  him  to  treat  the  contract  as  still  in  force.^'  This  prin- 
ciple has  been  applied  by  some  of  the  courts  to  contracts  of  hir- 
ing, and  it  has  been  held  that,  where  the  master  discharges  the 
servant  without  cause,  the  servant  need  not  treat  the  contract  as 
at  an  end,  but  may  hold  himself  in  readiness  to  perform,  and  re- 
cover each  installment  of  wages,  as  it  falls  due,  during  the  period 
for  which  he  was  employed.'"'  Other  courts  refuse  to  recognize 
this  doctrine — the  doctrine  of  constructive  service,  as  it  is  called — 
but  hold,  on  the  contrary,  that,  where  the  master  renounces  the 
contract  and  dismisses  the  servant  before  the  end  of  the  term,  the 
ser\^ant  cannot  go  on  and  do  the  work,  or  hold  himself  in  readiness 
to  do  it,  and  then  recover  the  contract  price  as  on  a  full  perform- 
ance, but  that  he  must  treat  the  hiring  as  at  an  end,  and  pursue 
his  remedy,  either  on  the  quantum  meruit,  or  for  damages  for 
breach  of  contract.'^* 

If  the  master  ill  treats  the  servant  by  assaulting  and  beating  him, 
he  breaks  an  implied  term  of  the  contract,  and  the  servant  may 
leave,  and  recover  as  upon  a  wrongful  discharge.^'  And  of  course 
nonpayment  of  the  wages  as  agreed,  is  a  breach  by  the  master. 


1*  Clark,  Cont.  G49;  Planch6  v.  Colburn,  8  Bing.  14;  W.  U.  Tel.  Co.  v. 
Serames,  73  Md.  9,  20  Atl.  127;   Seipel  v.  Trust  Co.,  84  Pa.  47. 

7  0  See  Mitchell  v.  Toale,  25  S.  C.  238,  60  Am.  Rep.  502. 

7  6  Clark,  Cont.  G45. 

7  7  Gandell  v.  Poutigny,  4  Camp.  375,  1  Starkie,  198;  Straus3  v.  Meertie^ 
64  Ala.  299,  38  Am.  Rep.  8;    Isaacs  v.  Davies,  68  Ga.  169. 

7  8  Clark  V.  Marsiglia,  1  Denio  (N.  Y.)  317,  43  Am.  Dec.  670;  Lord  v.  Thom- 
as, 64  N.  Y.  107;  Hosmer  v.  Wilson,  7  Mich.  294,  74  Am.  Dec.  716;  Gibbons 
V.  Rente,  51  Minn.  499,  53  N.  W.  750,  22  L.  R.  A.  80;  Collyer  v.  Moulton,  9 
R.  I.  90,  98  Am.  Dec.  370;  Heaver  v.  Lanahan,  74  Md.  493,  22  Atl.  263; 
Owen  V.  Frink,  24  Cal.  178. 

7  9  Ward  V.  Ames,  9  Johns.  (N.  Y.)  138;  Bishop  v.  Ranney,  59  Vt.  316,  r 
Atl.  820.  But  see  Morgan  v.  Shelton,  28  La.  Ann.  822,  a  case  in  which  it 
was  held  that  a  servant  who  was  knocked  down  by  his  master  in  a  fit  of 


492  MASTER  AND  SERVANT.  (Ch.  16 

Same — Breach  by  Servant. 

If  the  servant  willfully  renounces  and  abandons  the  service  with- 
out just  cause,  or,  by  his  inexcusable  conduct,  renders  further  per- 
formance impossible,  such  a  breach  terminates  the  contract,^"  and, 
if  the  contract  is  entire,  will  discharge  the  master  from  all  liability 
under  the  contract,  even  for  services  actually  rendered,  since  per- 
formance by  the  servant  is  a  condition  precedent  to  his  right  to 
compensation.  An  action  for  the  services  rendered  in  such  a  case 
clearly  cannot  be  brought  on  the  contract.^ ^  Whether  there  can  be 
a  recovery  on  the  quantum  meruit  is  a  different  question.  Such 
a  recovery,  as  will  be  seen  in  a  subsequent  section,  is  allowed  by 
some  courts,  but  denied  by  others.*^  Whether  or  not  a  mere  par- 
tial failure  on  the  part  of  one  of  the  parties  to  perform  the  contract 
discharges  the  other  altogether  from  liability  on  the  contract  is  a 
question  upon  which  the  decisions  are  conflicting.  If  there  is  an  ex- 
press and  entire  contract  to  pay  a  certain  lump  sum  for  the  serv- 
ices contracted  for,  then,  by  the  better  opinion,  the  servant  must 
perform  in  full  in  order  to  recover  anything.  If  he  performs  in 
part  only,  he  cannot  recover  on  the  quantum  meruit  for  what  he 
has  done.*' 

Breach  by  one  of  the  parties  of  a  subsidiary  term  in  the  contract 
does  not  discharge  the  other,  but  merely  entitles  him  to  damages.®* 


passion  was  not  justified  in  leaving.  An  assault  on  a  servant  or  his  child  by 
one  whio  is  not  connected  with  the  master,  and  without  any  direction  or 
authority  from  the  master,  does  not  entitle  the  servant  to  leave.  Mather  v. 
Brokaw,  43  N.  J.  Law,  587.  Compare  Patterson  v.  Gage,  23  Vt  558,  56  Am. 
Dec.  96. 

80  Leopold  V.  Salkey,  89  111.  412,  31  Am.  Rep.  93;  Newkirk  v.  New  York 
&  H.  R.  Co.,  38  N.  Y.  158. 

81  Hill  V.  Balkcom,  79  Ga.  444,  5  S.  El  200;  Scheuer  v.  Monash,  35  Misc. 
Rep.  276,  71  N.  Y.  Supp.  818. 

82  Post,  p.  500. 

83  Cutter  V.  Powell,  0  Term  R.  320. 

84  In  Bettini  v.  Gye,  1  Q.  B.  Div.  183,  the  plalntifif,  a  professional  singer, 
had  entered  into  a  conti-act  with  the  defendant,  director  of  an  opera,  for  his 
services  as  a  singer  for  a  considerable  time,  and  upon  a  number  of  terms, 
one  of  which  was  that  plaintiff  should  be  in  London  without  fail  at  least  six 
days  before  the  commencement  of  his  engagement,  for  the  purpose  of  re- 
hearsing. The  plaintiff  broke  this  term  by  arriving  only  two  days  before 
the  commencement  of  the  engagement,  and  the  defendant  treated  this  breach 
as  a  discharge  of  the  contract.  The  court  held,  however,  that,  in  the  ab- 
sence of  any  express  declaration  that  the  term  was  vital  to  the  contract,  It 


§§   259-261)  TERMINATION    OF   THE    RELATION.  493 

This  is  a  well-established  principle  of  the  general  law  of  contract. 
So,  if  the  contract  is  not  entire,  but  divisible,  breach  as  to  part 
will  not  prevent  recovery  for  performance  of  the  remainder.  It 
has  been  held  that  if  services  are  to  be  paid  for  in  installments, 
as  where  the  wages  are  to  be  paid  weekly  or  monthly  on  a  hiring 
for  a  year,  the  contract  will  be  regarded  as  divisible,  unless  such 
a  construction  is  expressly  excluded;  and  a  recovery  for  services 
rendered  may  be  had  by  the  servant  if  he  leaves  before  the  end  of 
the  term." 

There  is  an  implied  contract  upon  the  part  of  a  servant  that  he 
is  competent  to  discharge  the  duties  for  which  he  is  employed; 
and,  if  he  proves  incompetent,  it  is  a  breach  of  contract,  for  which 
he  may  be  dismissed.^*  A  servant  may  be  discharged  if,  by  in- 
toxication, even  outside  of  working  hours,  and  not  on  his  master's 
premises,  he  unfits  himself  to  fully  and  properly  perform  his  du- 
ties." And  drunkenness  on  the  master's  premises  may  be  ground 
for  dismissal,  though  it  does  not  incapacitate  the  servant  for  the 
performance  of  his  duties.*" 

must  "look  to  the  whole  contract,  and  see  whether  the  particular  stipulation 
goes  to  the  root  of  the  matter,  so  that  a  failure  to  perform  it  would  render 
the  performance  of  the  rest  of  the  contract  by  the  plaintiff  a  thing  different 
in  substance  from  what  the  defendant  has  stipulated  for;  or  whether  it 
merely  partially  affects  it,  and  may  be  compensated  for  in  damages."  And 
it  was  held  that  the  term  did  not  go  to  the  root  of  the  matter,  so  as  to  con- 
stitute a  condition  precedent.  On  the  other  hand,  where  a  singer  who  had 
agreed  to  take  the  principal  part  in  an  opera  failed  to  perform  in  the  opening 
and  early  performances,  it  was  held  that  the  other  party  was  discharged. 
Poussard  v.  Spiers,  1  Q.  B.  Div.  410. 

8  5  Chamblee  v.  Baker,  95  N.  C.  98.  The  application  of  the  rule  to  this 
particular  contract  Is  contrary  to  the  decisions  In  many  other  states.  See 
post,  p.  508. 

86  Leatherberry  v.  Odell  (C.  C.)  7  Fed.  641;  United  Oil  &  Refining  Co.  v. 
Grey  (Tex.  Civ.  App.)  102  S.  W.  934;  Ivey  v.  Bessemer  Oity  Cotton  Mills,  143 
N.  C.  189,  55  S.  E.  bl3;  Keedy  v.  Long,  71  Md.  385,  18  Atl.  704,  5  L.  R.  A. 
759;  Searle  v.  Ridley,  28  Law  T.  (N.  S.)  411;  Harmer  v.  Cornelius,  5  C.  B. 
(N.  S.)  236;  Waxelbaum  v.  Llmt>erger,  78  Ga.  43,  3  S.  B.  257;  Baltimore 
Baseball  Club  &  Exhibition  Co.  v.  Pickett,  78  Md.  375,  28  Atl.  279,  22  L.  R.  A. 
690,  44  Am.  St.  Rep.  304;  Woodrow  v.  Hawving,  105  Ala.  240,  16  South.  720. 

87  McCormick  v.  Demary,  10  Neb.  515,  7  N.  W.  283;  Ulrlch  v.  Hower,  150 
Pa.  414,  27  Atl.  243;    Smith  v.  Railroad  Co.,  60  Minn.  330,  62  N.  W.  392. 

f's  Bass  Furnace  Co.  v.  Glasscock,  82  Ala.  452,  2  South.  315,  60  Am.  Rep. 
748;  Dunkell  v.  Simons  (CJom.  PL)  7  N.  Y.  Supp.  655;  Speck  v.  Phillips,  5 
Mees.  &  W.  2T9. 


494  MASTER  AND  SERVANT.  (Ch.  16 

A  servant  may  be  dismissed  by  the  master  before  the  expiration 
of  the  term  either  for  criminal  or  immoral  conduct,  willful  disobe- 
dience, or  habitual  neglect.*'  He  may  be  dismissed  for  larceny  or 
embezzlement,  either  from  the  master  or  a  third  person;''"  and  he 
may  be  dismissed  for  cheating  or  defrauding,  or  attempting  to  cheat 
or  defraud,  his  master.^^  Habitual  neglect  of  duty  is  always  suf- 
ficient ground  for  discharge.^^  So  if  a  servant  handling  his  mas- 
ter's money,  as  a  cashier,  for  instance,  largely  overdraws  his  sal- 
ary, the  master  may  discharge  him.»'  Gross  moral  misconduct  is 
always  good  ground  for  dismissal.®* 

Willful  disobedience  by  a  servant  of  the  master's  orders  is  a 
breach  of  his  contract,  and  ground  for  dismissal,  unless  the  dis- 
obedience is  in  a  slight  matter,  and  involves  no  serious  consequen- 
ces."    Even  in  the  latter  case  there  are  authorities  holding  a  dis- 


89  2  Kent,  Comm.  258. 

po  Libhart  v.  Wood,  1  Watts  &  S.  (Pa.)  2G5,  37  Am.  Dec.  4G1;  Cunningham 
V.  Fonblauque,  6  Car.  &  P.  44,  49;  Spotswood  v.  Barrow.  5  Exch.  110.  See, 
also,  Butterick  Pub.  Co.  v.  Whitcomb,  225  111.  605,  80  N.  E.  247,  8  L.  R.  A. 
(N.  S.)  1004,  where  the  servant,  after  the  termination  of  his  emploj'ment,  re- 
tained a  book  issued  by  the  employer  and  delivered  it  to  a  competitor.  There- 
after the  employer  hired  the  emplbyg  for  a  specified  term,  and  it  was  held 
that  the  act  of  the  employe  while  not  in  defendant's  employ  did  not  justify 
him  in  terminating  the  contract  of  employment. 

81  Singer  v.  McCormick,  4  Watts  &  S.  (Pa.)  267. 

92  Callo  V.  Brouncker,  4  Car.  &  P.  518;  Robinson  v.  Hindman,  3  Esp.  235; 
Wright  V.  Lake,  48  Wash.  4G9,  93  Pac.  1072;  Armour-Cudaby  Packing  Co.  v. 
Hart,  36  Neb.  166,  54  N.  W.  262;  Elliott  v.  Wanamaker,  155  Pa.  67,  25  Atl. 
826.  The  employer  is  the  sole  judge  whether  his  interests  have  been  jeopar- 
dized by  neglect.    International  Harvester  Co.  v.  Boatman,  122  111.  App.  474, 

98  Smith  V.  Baker,  101  Mich.  155,  59  N.  W.  394. 

»*  As  the  pregnancy  of  a  maid  servant,  Connors  v.  Justice,  13  Ir.  Com. 
Law,  451;  or  being  the  father  of  a  bastard  child,  Rex  v.  Inhabitants  of 
Welford,  Cald.  57;  or  an  attempt  to  ravish  a  maid  servant,  Atkin  v.  Acton, 
4  Car.  &  P.  208. 

9BLilley  v.  Elwin,  11  Q.  B.  742;  Spain  v.  Arnott,  2  Starkie,  256;  Leather- 
berry  V.  Odell  (C.  C.)  7  Fed.  641;  Standidge  v.  Lynde,  120  111.  App.  418;  Von 
Heyne  v.  Tompkins,  89  Minn.  77,  93  N.  AV.  901,  5  L.  R.  A.  (N.  S.)  524;  Dunkell 
V.  Simons  (Com.  PI.)  7  N.  Y.  Supp.  655;  Tullis  v.  Hassell,  54  N.  Y.  Super.  Ct 
391;  Matthews  v.  Park  Bros.  &  Co.,  146  Pa.  3S4,  23  Atl.  208;  Id.,  159  Pa.  579, 
28  Atl.  435;  Fisher  v.  Monroe  (City  Ct.)  17  N.  Y.  Supp.  837,  Hamlin  v.  Race, 
78  111.  422. 


§§    259-261)  TERMINATION    OF   THE    RELATION.  495 

missal  justified,*'  but  the  better  opinion  is  to  the  contrary.®^  A 
dismissal  has  been  held  justified  where  a  house  servant  went  to 
see  her  sick  mother,  who  was  supposed  to  be  in  danger  of  death;  ** 
but  this  case  goes  too  far,**  A  dismissal  has  also  been  held  jus- 
tified where  a  servant  refused  to  go  on  an  errand  without  having 
had  his  dinner ;  ^  where  a  farm  hand  refused  to  go  to  work  without 
beer;''  where  an  employe  smoked  in  the  shop,  in  violation  of  rules, 
and,  when  remonstrated  with,  left  the  shop  in  working  hours,  to 
finish  the  smoke.'  But  the  contrary  was  held  where  the  ground 
relied  upon  for  dismissal  of  a  teacher  was  the  failure  to  return 
within  a  day  or  two  after  vacation ;  *  where  a  factory  employe 
absented  himself  for  a  day.' 

By  the  better  opinion,  especially  in  the  case  of  mechanics,  clerks 
in  stores,  and  other  servants  not  menial,  the  act  of  disobedience, 
to  justify  dismissal,  must  involve  injury  to  the  master.  "  'Willful' 
disobedience,  in  the  sense  in  which  the  word  is  used  in  the  au- 
thorities, means  something  more  than  a  conscious  failure  to  obey. 
It  involves  a  wrongful  or  perverse  disposition,  such  as  to  render 
the  conduct  unreasonable,  and  inconsistent  with  proper  subordina- 
tion. We  are  not  prepared  to  hold  that,  even  in  what  is  known  as 
'menial  service,'  every  act  of  disobedience  may  be  lawfully  pun- 
ished by  the  penalty  of  dismissal,  and  the  serious  consequences 
which  it  entails  upon  the  servant  put  out  of  place.  No  doubt, 
domestic   discipline   may    be   closer   than   that    in   business    employ- 


s' Matthews  v.  Park  Bros.  &  Co.,  146  Pa.  384,  23  Atl.  208;  Id.,  159  Pa.  579, 
28  Atl.  435;  Forsyth  v.  McKinney,  50  Hun,  1,  8  N.  Y.  S.  5G1;  Turner  v.  Ma- 
son, 14  Mees.    &   W.    112,   14   Law  J.    Exch.  311. 

97  Shaver  v.  Ingham,  58  Mich.  G49,  26  N.  W.  162.  55  Am.  Rep.  712;  Ham- 
ilton V.  Love  (Ind.)  43  N.  E.  873 ;  Id.,  152  Ind.  641,  53  N.  E.  181,  54  N.  E.  437,  71 
Am.  St.  Rep.  384 ;  Callo  v.  Brouucker,  4  Car.  &  P.  518 ;  Park  Bros.  &  Co.  v. 
Bushnell,  GO  Fed.  583,  9  C.  C  A.  138. 

9  8  Turner  v.  Mason,  14  Mees.  &  W.  112,  14  Law  J.  Exch.  311. 

99  Shaver  v.  Ingham,  58  Mich.  G49,  26  N.  W.  1G2,  55  Am.  Rep.  712. 

1  Spain  V.  Arnott,  2  Starkie,  256. 

2  Lilley  v.  Elwin,  11  Q.  B.  742. 

8  Forsyth  v.  McKinney,  56  Hun,  1,  8  N.  Y.  Supp.  561. 

*  Fillieul  V.  Armstrong,  7  Adol.  &  E.  557.  See,  also,  Thrift  v.  Payne,  71 
111.  408. 

0  Shaver  v.  Ingham,  58  Mich.  649,  26  N.  W.  162,  55  Am.  Rep.  712.  If  a 
day's  absence  involves  serious  consequences,  it  will  justify  dismissal.  See 
Ford  y.  Banks,  16  La.  Ann.  119. 


496  MASTER  AND  SERVANT.  (Cll.  16 

merits;  but  there  must  be  a  limit  to  the  arbitrary  power  of  mas- 
ters." '  Unless  the  dismissal  was  clearly  justifiable  within  these 
rules,  the  question  should  be  left  to  the  jury.'' 

Where  the  disposition  and  deportment  of  the  servant  are  such  as  to 
seriously  injure  the  custom  and  business  of  the  master,  or  his  other 
interests,  he  may  be  dismissed ;  but  slight  discourtesies,  hasty  words, 
and  occasional  exhibitions  of  ill  temper,  are  not  sufficient  cause  for 
dismissal,  where  there  are  many  petty  causes  for  annoyance  and  ir- 
ritation in  the  business.^ 

If  a  servant,  without  the  consent  of  his  master,  engage  in  any  em- 
ployment or  business,  for  himself  or  another,  which  may  tend  to  in- 
jure his  master's  trade  or  business,  this  is  ground  for  his  dismissal. 
"This  is  so  because  it  is  the  duty  of  the  servant,  not  only  to  give  his 
time  and  attention  to  his  master's  business,  but,  by  all  lawful  means 
at  his  command,  to  protect  and  advance  his  master's  interests.  But, 
when  the  servant  engages  in  a  business  which  brings  him  in  direct 
competition  with  his  master,  the  tendency  is  to  injure  or  endanger, 
not  to  protect  and  promote,  the  interests  of  the  latter."  "  It  is  not 
essential  that  the  servant  should  engage  in  a  business  directly  com- 
peting with  that  of  the  master,  but  the  misappropriation  of  the  time 
belonging  to  the  master  is  a  sufficient  ground  for  dismissal.^* 

The  master  may  condone  or  waive  a  breach  of  contract  by  the  serv- 
ant; and,  if  he  does  so,  he  cannot  afterwards  rely  upon  it  as  a  dis- 
charge, either  to  justify  a  dismissal  of  the  servant,  or  to  defeat  an 

e  Shaver  t.  Ingham.  58  Mich.  649,  26  N.  W.  162,  56  Am.  Rep.  T12. 

7  Shaver  v.  Ingham,  58  Mich.  649,  26  N.  W.  162,  55  Am.  Rep.  712;  E>iwards 
V.  Levy,  2  Fost.  &  F.  94. 

8  Leatherberry  v.  Odell  (C.  C.)  7  Fed.  641;  Lalande  v.  Aldrich,  41  La.  Ann. 
307,  6  South.  28. 

9  Dieringer  v.  Meyer,  42  Wis.  311,  24  Am.  Rep.  415;  Glaser  v.  National 
Ahimni  (Sup.)  97  N.  Y.  Supp.  984;  Thompson  v.  Havelock,  1  Camp.  527.  Cf. 
Chaddock  College  v.  Bretherick,  36  111.  App.  621.  The  fact  that  the  serv- 
aut  in  such  a  case  continues  to  give  his  whole  time  and  attention  to  his 
master's  business  is  immaterial.  Dieringer  v.  Meyer,  supra.  Compare  Day 
V.  American  Machinist  Press,  86  App.  Div.  613,  83  N.  Y.  Supp.  263. 

10  Atlantic  Compress  Co.  v.  Young,  118  Ga.  868,  43  S.  E.  677;  Vidalla  Com- 
press &  Power  Co.  v.  Mathews,  1  Ga.  App.  56,  57  S.  E.  902.  In  the  latter 
case  it  was,  however,  said  that,  while  a  servant  has  no  right  to  appropriate 
any  part  of  his  employer's  time  to  his  own  use,  yet  where  the  work  at 
which  he  is  employed  has  been  suspended,  a  temporary  absenting  himself 
where  no  injury  results  to  the  employer  will  not  justify  his  discharge. 


I 


§§   259-261)  TERMINATION   OF  THE   RELATION.  497 

action  for  wages."  Retention  of  the  servant  after  knowledge  of 
misconduct  or  a  breach  of  contract  on  his  part  is  prima  facie  a  waiv- 
er ;^^  but  the  master  may  show  circumstances  excusing  his  delay.^^ 
The  retention  of  a  servant  after  knowledge  of  a  specific  breach  of 
duty  will  not  waive  or  condone  subsequent  continued  breaches  of 
the  same  character.^* 

If  there  is  sufficient  ground  for  dismissing  a  servant,  the  motive  of 
the  master  in  taking  advantage  of  it  is  altogether  immaterial.^ ° 
Any  adequate  cause  for  dismissal  known  to  the  master  at  the  time 
of  dismissal  will  justify  him,  whether  such  cause  was  assigned  or 
not,  and  even  though  a  different  cause  may  have  been  assigned.^*  It 
has  even  been  held,  and  very  properly,  that  good  and  sufficient  rea- 
sons for  dismissal,  existing  at  the  time  of  dismissal,  will  justify  him, 
though  he  did  not  even  know  of  them  until  afterwards.*' 

Discharge  of  Contract  by  Impossibility  of  Performance. 

Impossibility  of  performance  arising  subsequent  to  the  formation 
of  the  contract  does  not  discharge  either  party  from  his  obligation, 

11  Bast  V.  Byrne,  51  Wis.  531,  8  N.  W.  494,  37  Am.  Rep.  841 ;  Sharp  v.  Mc- 
Bride,  120  La.  143,  45  South.  41;  Fitzpatrick  Square  Bale  Ginning  Co.  "v.  Mc- 
Laney  (Ala.)  44  South.  1023 ;  Reynolds  v.  Hart,  42  Colo.  150,  94  Pac.  14 ;  Pren- 
tiss V.  Ledyard,  28  AVis.  131;  Buttericlc  Pub.  Co.  v.  Whitcomb,  225  111.  G05, 
80  N.  E.  247,  8  L.  R.  A.  (N.  S.)  1004 ;  McGrath  v.  Bell,  33  N.  Y.  Super.  Ct.  195 ; 
Leatherberry  v.  Odell  (C.  O.)  7  Fed.  641;  Jonas  v.  Field,  83  AJa.  445,  3  South. 
893. 

12  Cases  above  cited. 

13  Jonas  V.  Field,  83  AJa.  445,  3  South.  893;  McMiirray  v.  Boyd,  58  Ark 
504,  25  S.  W.  505. 

1*  United  Oil  &  Refining  Co.  v.  Grey  (Tex.  Civ.  App.)  102  S.  W.  934;  Jerome 
V.  Queen  City  Cycle  Co.,  103  N.  Y.  351,  57  N.  E.  485. 

15  Von  Heyne  v.  Tompkins,  89  Minn.  77,  93  N.  W.  901,  5  L.  R.  A.  (N.  S.)  524 ; 
Jackson  v.  Hospital,  6  Misc.  Rep.  101.  26  N.  Y.  Supp.  27;  Corgan  v.  Geo.  F. 
Lee  Coal  Co.,  218  Pa.  386,  67  Atl.  655,  120  Am.  St.  Rep.  891. 

i«  Sterling  Emery  Wheel  Co.  v.  Magee,  40  111.  App.  340;  Von  Heyne  v. 
Tompkins,  89  Minn.  77,  93  N.  W.  901,  5  L.  R.  A.  (N.  S.)  524;  Corgan  v.  Geo. 
F.  Lee  Coal  Co.,  218  Pa.  38G,  67  Atl.  655,  120  Am.  St.  Rep.  891;  Ball  v.  Min- 
ing Co.,  8  Misc.  Rep.  333,  28  N.  Y.  Supp.  537;  Odeneal  v.  Henry.  70  Miss. 
172,  12  South.  154;  Baillie  v.  Kell,  4  Bing.  N.  C.  638;  Ridgrvay  v.  Market  Co., 
3  Adol.  &  B.  171.  But  see  Shaver  v.  Ingham,  58  Mich.  649,  20  N.  W.  102,  55 
Am.  Rep.  712;  Cussons  v.  Skinner,  U  Mees.  &  W.  161;  Smith  v.  Allen,  3 
Fost.  &  F.  157. 

17  Odeneal  v.  Henry,  70  Miss,  172,  12  South.  154;  Von  Heyne  v.  Tompkins 
S9  Minn.  77,  93  N.  W.  901,  5  L.  R.  A.  (N.  S.)  524;  Willets  v.  Green,  3  Oar.  & 
K.  59:  Spotswood  v.  Barrow,  5  Exch.  110.  But  see  Cussons  v.  Skinner,  11 
TIFF.P.&  D.Rel.(2d  Ed.)— S2 


498  MASTER  AND   SERVANT.  (Ch.  16 

even  though  he  may  not  be  at  all  in  fault,^®  except  (1)  where  the  im- 
possibility arises  from  a  change  in  the  law,^®  or  from  the  action  of 
a  court,  as  by  injunction  where  the  party  claiming  to  be  discharged 
thereby  is  not  in  fault;  ^°  or  (2),  in  some  states,  where  the  object  on 
which  the  services  are  to  be  performed  is  destroyed  without  fault  on 
the  part  of  either  party  ;*^  or  (3)  where  either  one  of  the  parties 
dies,^^  or  the  servant  is  permanently  incapacitated  by  illness  or  per- 

Mees.  &  W.  161.  In  Willets  v.  Green,  3  Car.  &  K.  59,  Alderson,  B.,  said:  "If 
an  employer  discharge  his  servant,  and  at  the  time  of  the  discharge  a  good 
cause  of  discharge  in  fact  exists,  the  employer  is  justified  in  discharging  the 
servant,  although  at  the  time  of  the  discharge  the  employer  did  not  know  of 
the  existence  of  the  cause.  This  point  has  been  much  discussed  in  the  house 
of  lords  and  elsewhere,  but  what  I  have  stated  is  the  result," 

18  See  aark,  Cont.  678  et  seq.;  Leopold  v.  Salkey,  89  111.  412,  31  Am.  Rep. 
93.  A  senant  is  not  discharged  from  liability  to  perform  his  contract  by  the 
fact  that  he  is  arrested,  even  v^ithout  his  fault,  and  confined  in  jail.  In 
such  a  case  the  master  may  rescind.  Leopold  v.  Salkey,  supra.  Wliere  per- 
formance becomes  impossible  by  reason  of  contingencies  which  should  have 
been  foreseen  and  provided  against  in  the  contract,  the  promisor  is  not  dis- 
charged. It  was  therefore  held  by  the  Supreme  Court  of  Wisconsin  that  where 
the  plaintiff  agreed  that  he  and  his  wife  should  work  for  the  defendant  for  a 
year,  and  four  months  afterwards  the  wife,  being  about  to  give  birth  to  a 
child,  left,  and  the  plaintiff  was  thereiipon  discharged,  the  plaintiff  could 
not  recover  for  his  wages  on  the  quantum  meruit,  as  he  should  have  fore- 
seen and  provided  for  his  wife's  sickness  when  he  made  the  contract,  and 
therefore  his  nonperformance  was  not  excused.  Jennings  v.  Lyons,  39  Wis. 
553,  20  Am.  Rep.  57. 

19  Clark,  Cont  681.  See  Cordes  v.  Miller,  39  Mich.  581,  33  Am.  Rep.  430; 
Jones  v.  Judd,  4  N.  Y.  411.  As  where  the  object  for  which  the  services  are 
engaged  are  prohibited  by  statute.  Cordes  v.  Miller,  supra.  There  is  no  dis- 
charge if  the  change  in  the  law  merely  makes  performance  more  burdensome. 
Baker  v.  Johnson,  42  N.  Y.  126. 

2  0  People  V.  Insurance  Co.,  91  N,  Y.  174, 

21  Cook  V.  McCabe,  53  Wis.  250,  10  N,  W.  507,  40  Am.  Rep.  765;  Butterfield 
T.  Byron,  153  Mass.  517,  27  N.  E.  667,  12  L.  R.  A.  571,  25  Am.  St.  Rep.  654; 
Hindrey  v.  Williams,  9  Colo.  371,  12  Pac.  436.  But  see  Brumby  v.  Smith,  3 
Ala,  123. 

2  2  Clark,  Cont.  683,  collecting  cases.  The  death  of  the  master  discharges 
the  contract.  Yerriugton  v.  Greene,  7  R.  I.  589,  84  Am.  Dec.  578;  Lacy  v. 
Getman,  119  N.  Y.  109.  23  N.  E.  452,  6  L.  R.  A,  728,  16  Am.  St.  Rep.  806; 
Campbell  v.  Faxon,  Horton  &  Gallagher,  73  Kan.  675,  85  Pac.  760,  5  L.  R. 
A.  (N.  S.)  1002;  Farrow  v.  Wilson,  L.  R.  4  C.  P.  744.  But  it  has  been  held 
by  some  courts  that  the  death  of  one  only  of  two  joint  employers,  as  of  a 
partner,  does  not  terminate  the  hiring.  Martin  v.  Hunt.  1  Allen  (Mass.)  419; 
Fereira  v.  Sayres,  5  Watts  &  S.  (Pa.)  210,  40  Am.  Dec.  496.    The  better  opln- 


§§   259-261)  TERMINATION    OF   THE    RELATION.  499 

sonal  injury,^^  or  where  the  prevalence  of  a  contagious  and  fatal  dis- 
ease in  the  vicinity  of  the  place  where  the  servant  is  to  work  ren- 
ders it  unsafe  for  him  to  remain  there.**  As  heretofore  stated,  im- 
possibility cannot  be  relied  upon  as  a  discharge  if  it  was  created  by 
the  party  himself;  but  such  impossibility  will  operate  as  a  discharge 
of  the  other  party.*°  The  fact  that  the  master  becomes  insolvent, 
and  is  obliged  to  cease  business,  does  not  discharge  him  from  his 
obligation  to  pay  the  servant's  wages  for  the  full  term,  or  to  pay 
damages  for  refusal  to  carry  out  the  contract.^'  The  appointment 
of  a  receiver  has,  however,  been  held  to  terminate  the  contract.^ ^ 


ion,  however,  is  to  the  contrary.  Griggs  v.  Swift,  82  Ga.  392,  9  S.  E.  10G2, 
5  Li.  R.  A.  405,  14  Am.  St.  Rep.  176;  Louis  v.  Elfelt,  89  Cal.  547.  20  Pac. 
1095;  Tasker  v.  Shepherd,  6  Hurl.  &  N.  575.  The  death  of  the  servant  dis- 
charges the  contract.    Wolfe  v.  Howes,  20  N.  Y.  197,  75  Am.  Dec.  388. 

2  3  The  authorities  all  agree  that  the  incapacitating  siclcness  of  the  servant, 
or  incapacitating  personal  injuries,  will  operate  as  a  discharge  of  the  con- 
tract if  permanent,  or,  if  temporary,  excuse  nonperformance  or  delay  in  per- 
formance on  the  part  of  the  servant.  Robinson  v.  Davison,  L.  R.  G  Exch. 
2(J9;  Wolfe  v.  Howes,  20  N.  Y.  197,  75  Am.  Dec.  388;  Clark  v.  Gilbert,  2G  N. 
Y.  279,  84  Am.  Dec.  189;  Spalding  v.  Rosa,  71  N.  Y.  40,  27  Am.  Rep.  7;  Har- 
rington V.  Iron  Works  Co.,  119  Mass.  82;  Fuller  v.  Brown,  11  Mete.  (Mass.) 
440;  Fenton  v.  Clark,  11  Vt.  557;  Hubbard  v.  Belden,  27  Vt.  645;  Green  v. 
Gilbert,  21  Wis.  395.  Temporary  sickness  is  no  ground  for  dismissal  unless 
the  nature  of  the  contract  is  such  that  a  temporary  illness  makes  it  necessary 
to  employ  another  servant.  See  Cuckson  v.  Stones,  28  Law  J.  Q.  B.  25,  5  Jur. 
(N.  S.)  337,  1  El.  &  El.  248;    Eversley,  Dom.  Rel.  929. 

2  4  Lakeman  v.  Pollard,  43  Me.  4(33,  69  Am.  Dec.  77.  But  see  Dewey  v. 
School  Dist.,  43  Mich.  480,  5  N.  W.  G46,  38  Am.  Rep.  200. 

2  5  Ante,  p.  490. 

26Vanuxem  v.  Bostwick  (Pa.)  7  Atl.  598 

27  Eddy  V.  Co-operative  Dress  Ass'n,  3  N.  Y.  Civ.  Proc.  442.  And  see  In  re 
Sweotser  Pembroke  &  Co.,  142  Fed.  131,  73  C.  C.  A.  349,  when  the  contract 
expressly  provided  that  it  might  be  terminated  by  the  corporation  in  case 
of  its  dissolution  and  the  corporation  was  declared  bankrupt. 


500  MASTER  AND   SERVANT.  (Ch.  16 

REMEDIES   FOR   BREACH   OF  CONTRACT— DAMAGES. 

262.  A  breach  of  tlie  contract  of  hiring  by  the  servant  gives  the  mas- 

ter a  right  of  action  for  any  damages  he  may  have  sustained. 

263.  Upon  a  breach  of  the  contract  by  the  master  by  wrongfully  dis- 

charging the  servant,  the  servant  has  the  follo^ving  remedies: 

(a)  He  may  bring  an  action  on  the  contract  of  hiring,  and  recover 

xrhatever  damages  he  may  have  sustained;  the  measure  of  his 
damages  being  the  amount  already  earned  and  unpaid,  and 
Trhatever  he  would  have  earned  during  the  remainder  of  the 
term,  less  any  sums  actually  earned  in  other  employment,  or 
which  he  might  have  earned  by  the  exercise  of  reasonable  dili- 
gence in  seeking  similar  employment. 

(b)  Or  he  may  treat  the  contract  as  rescinded,  and  recover  on  the 

quantum  meruit  for  services  actually  rendered. 

(c)  Either  of  these  actions  is  a  bar  to  the  other. 

(d)  A  few^  courts  allow^  him  to  treat  the  contract  as  still  in  force,  and 

recover  wages  as  they  fall  due,  upon  the  theory  of  constructive 
service;    but  in  most  states  this  doctrine  is  repudiated. 

If  the  servant  breaks  his  contract  by  renouncing  it  before  the  time 
for  performance  has  arrived,  or  by  abandoning  the  service  after  a 
part  performance,  or  by  otherw^ise  failing  to  perform  it  according  to 
its  terms,  the  remedy  of  the  master  is  by  action  of  special  assumpsit 
to  recover  damages  for  the  breach;  or  he  may  set  up  such  damages 
if  sued  by  the  servant  for  services  rendered. 

If  the  master  renounces  the  contract  before  the  time  for  perform- 
ance, and  therefore  before  any  services  are  rendered,  the  only  remedy 
of  the  servant,  by  the  better  opinion,  is  an  action  of  special  assump- 
sit to  recover  damages  for  the  breach.  Some  courts,  as  we  shall 
presently  see,  permit  him  to  treat  the  contract  as  still  in  force,  and 
to  recover  the  wages,  on  the  theory  of  constructive  service,  when 
they  fall  due  under  the  contract.^^ 

If  the  master  breaks  the  contract  in  the  course  of  performance, 
either  by  discharging  the  servant  without  cause,  or  by  giving  the 
servant  cause  to  leave  and  refuse  further  performance,  the  servant 
has  an  election  of  remedies: 

First.  He  may  bring  special  assumpsit  against  the  master  for  his 
breach  of  the  contract;  and  this  remedy  he  may  pursue  whether  his 
wages  are  paid  up  to  the  time  of  his  discharge  or  not.  And  he  may 
either  bring  this  action  immediately,  or  he  may  wait  until  the  period 

28  Post,  p.  503,  aud  cases  there  cited. 


I 


§§   262-263)         REMEDIES   FOR   BREACH    OF   CONTRACT.  501 

for  which  he  was  hired  has  expired.  In  such  an  action  he  will  be  en- 
titled to  recover  the  wages,  if  any,  earned  up  to  the  time  of  the  dis- 
charge, and,  in  addition,  the  actual  damages  he  has  sustained  by  the 
master's  breach  of  the  contract.^^  In  case  he  has,  by  the  exercise  of 
due  diligence,  been  unable  to  secure  other  employment  during  the 
entire  term,  he  can  recover  the  entire  wages.  He  cannot  remain  idle 
during  the  term  for  which  he  was  hired,  but  must  seek  for  other  em- 
ployment. The  measure  of  his  damages,  therefore,  is  the  wages  he 
would  have  earned  under  the  contract,  less  any  amount  he  has  ac- 
tually earned  in  other  employment,  or  which  he  might  have  earned 
by  the  exercise  of  proper  diligence  in  seeking  employment  in  the 
same  line  of  business.^" 

2  9  Keedy  v.  Long,  71  Md.  385,  18  Atl.  704,  5  L.  R.  A.  759;  Sherman  v. 
Champlain  Transp.  Co.,  31  Vt.  162;  Texarkana  Lumber  Co.  v.  Lennard  (Tex. 
Civ.  App.)  104  S.  W.  506 ;  Smith  v.  Cashie  &  Chowan  R.  &  Lumber  Co.,  142  N. 
C.  26,  54  S.  E.  788,  5  L.  R.  A.  (N.  S.)  439.  Though,  according  to  its  terms,  a 
contract  of  employment  was  terminable  at  any  time,  a  refusal  to  let  the  em- 

•  ploye  begin  work  was  a  breach  of  the  contract  entitling  the  employe  to  at 
least  nominal  damages.  Cronemillar  v.  Duluth-Superior  Milling  Co.,  134 
Wis.  248,  114  N.  W.  432. 

3  0  Fitzpatrick  Square  Bale  Ginning  Co.  v.  McLaney  (Ala.)  44  South.  1023; 
C.  D.  Smith  &  Co.  v.  Ohler  (Ky.)  104  S.  W.  995;  Lake  Erie  &  W.  Ry.  Co.  v. 
Tierney,  29  Ohio  Cir.  Ct.  R.  83  (judgment  affirmed  80  N.  E.  1128) ;  Kansas 
Union  Life  Ins.  Co.  v.  Burman,  141  Fed.  835,  73  C.  C.  A.  69;  Semet-Solway 
Co.  V.  Wilcox,  143  Fed.  839,  74  C.  0.  A.  635;  Peterson  v.  Drew,  2  Alaska. 
500;  Elderton  v.  Emmens,  6  C.  B.  160;  Goodman  v.  Pocock,  15  Q.  B.  576; 
Keedy  v.  Long,  71  Md.  385,  18  Atl.  704,  5  L.  R.  A.  759;  Sherman  v.  Cham- 
plain  Transp.  Co.,  31  Vt.  162,  179;  Howard  v.  Daly,  Gl  N.  Y.  362,  19  Am. 
Rep.  285;  Willoughby  v.  Thomas,  24  Grat.  (Va.)  521;  Leatherberry  v.  Odell 
(C.  O.)  7  Fed.  641;  Fuller  v.  Little,  61  111.  21;  Mahon  v.  Daly,  70  111.  053; 
Dana  v.  Short,  81  III.  468;  Litchensteln  v.  Brooks,  75  Tex.  196,  12  S.  W.  975; 
Bennett  v.  Morton,  46  Minn.  113,  48  N.  W.  678;  Allen  v.  Maronne,  93  Teun.' 
161,  23  S.  W.  113.  That  the  servant  must  use  reasonable  diligence  in  seek- 
ing other  employment,  and  that  the  amount  earned,  or  which  should  have 
been  earned.  In  other  employment,  will  be  deducted  from  his  claim,  see 
Howard  v.  Daly,  61  N.  Y.  362,  19  Am.  Rep.  285;  Leatherberry  v.  Odell  (O. 
C.)  7  Fed.  041;  Fuller  v.  Little,  61  111.  21;  Chaunplaiu  v.  Stamping  Co.,  68 
Mich.  238,  36  N.  W.  57;  Stevens  v.  Crane,  37  Mo.  App.  487;  Troy  Fertilizer 
Co.  V.  Logan,  96  Ala.  619,  12  South.  712.  He  is  only  bound  to  use  reasonable 
diligence  in  seeking  other  employment,  and  is  only  reiiuired  to  seek  employ- 
ment In  the  same  or  a  similar  line  of  business,  in  the  same  grade,  and  in  the 
same  place.  Leatherberry  v.  Odell  (C.  C)  7  Fed.  641;  Strauss  v.  Meertief,  64 
Ala.  299,  38  Am.  Rep.  8 ;  Fuchs  v.  Koerner,  107  N.  Y.  529,  14  N.  E  445  •  Costi- 
gan  V.  Railroad  Co.,  2  Denio  (N.  Y.)  609,  43  Am.  Dec'  758;    Hinehcliffe  y. 


502  MASTER  AND  SERVANT.  (Ch.  16 

Second.  If  the  servant's  wages  are  not  paid  up  to  the  time  of  his 
discharge,  he  may  treat  the  contract  of  hiring  as  rescinded,  and  main- 
tain general  assumpsit  on  the  quantum  meruit,  to  recover  for  the 
services  he  has  actually  rendered.  He  recovers  in  such  an  action 
what  the  services  were  reasonably  worth,  and  is  not  bound  by  the 
rate  of  compensation  fixed  by  the  contract.  He  can  only  recover  in 
this  form  of  action  for  services  actually  rendered.'^ 

The  servant  must  elect  between  these  actions.  He  cannot  main- 
tain both.  If  he  elects  to  sue  upon  the  quantum  meruit,  he  treats 
the  contract  as  rescinded,  and  he  cannot  afterwards  treat  it  as 
binding,  in  order  to  maintain  special  assumpsit  on  it  for  damages  for 
its  breach.  And  so,  conversely,  if  he  brings  special  assumpsit,  he 
treats  the  contract  as  binding,  and  he  cannot  afterwards  treat  it  as 
rescinded  for  the  purpose  of  suing  on  the  quantum  meruit.  And  one 
action  for  breach  of  the  contract  is  a  bar  to  any  further  action.'* 


Koontz,  121  Ind.  422,  23  N.  E.  271,  16  Am.  St.  Rep.  403 ;  Simon  v.  Allen,  76 
Tex.  398,  13  S.  W.  296.  The  plaintiff  is  not  required  to  allege  and  prove  that 
he  was  unable  to  procure  other  employment.  Beissel  v.  Vermillion  Farmers' 
Elevator  Co.,  102  Minn.  229,  113  N.  W.  575,  12  L.  R.  A,  (N.  S.)  403.  That  he 
might  have  found  other  employment  by  the  exercise  of  due  diligence  is  a 
matter  of  defense.  Graff  v.  Blumberg,  53  Misc.  Rep.  296,  103  N.  Y.  Supp. 
184.  And  the  burden  of  proving  that  other  employment  could  have  been  ob- 
tained by  the  exercise  of  reasonable  diligence  is  on  the  master.  American 
China  Development  Co  v.  Boyd  (C.  C.)  148  Fed.  258;  Milage  v.  Woodward, 
186  N.  Y.  252,  78  N.  E.  873 ;  Monroe  v.  Proctor,  51  Misc.  Rep.  032,  100  N.  Y. 
Supp.  1021;  San  Antonio  Light  Pub.  Co.  v.  Moore  (Tex.  Civ.  App.)  101  S.  W. 
867;  Costigan  v.  Railroad  Co.,  2  Denio  (N.  Y.)  609,  43  Am.  Dec.  758;  Howard 
V.  Daly,  61  N.  Y.  362.  19  Am.  Rep.  285;  Leatherberry  v.  Odell  (C.  C.)  7  Fed. 
041;  City  of  Jaclvsonville  v.  Allen,  25  111.  App.  54;  Brown  v.  Board  of  Educa- 
tion, 29  111.  App.  572 ;  Odeneal  v.  Henry,  70  Miss.  172,  12  South.  154 ;  Allen  v. 
Whitlark,  99  Mich.  492,  58  N.  W.  470;  Van  Winkle  v.  Satterfiold,  58  Arli. 
617,  25  S.  W.  1113,  23  L.  R.  A.  853.  As  to  the  effect  of  intoxication  of  the 
servant  after  dismissal,  and  when  he  should  have  been  seeking  other  employ- 
ment, se€  Hinchcliffe  v.  Koontz,  121  Ind.  422,  23  N.  B.  271,  16  Am.  St.  Rep. 
403. 

31  See  Ryan  v.  Dayton,  25  Conn.  188,  65  Am.  Dec.  560;  Keedy  v.  Long,  71 
Md.  385,  18  Atl.  704,  5  L.  R.  A.  759;  Smith  v.  Cashie  &  Chowan  R.  &  Lumber 
Co.,  142  N.  C.  26,  54  S.  E.  788,  5  L.  R.  A.  (N.  S.)  439 ;  Peacock  v.  Coltrane,  44 
Tex.  Civ.  App.  5.30,  90  S.  W.  107;  Brown  v.  Crown  Gold  Milliug  Co.,  150  Cal. 
376,  89  Pac.  86;  Rogers  v.  Parham.  8  Ga.  190;  Sherman  v.  Champlain  Transp. 
Co.,  31  Vt.  162 ;  Rye  v.  Stubbs,  1  Hill  (S.  C.)  384 ;  Clark  v.  Manchester,  51  N. 
H.  594;  Hartman  v.  Rogers.  69  Cal.  643,  11  Pac.  581. 

«2  Keedy  v.  Long,  71  Md.  385,  18  Atl.  704,  5  L.  R.  A.  759;    Litchenstein  v. 


§§  262-263)    REMEDIES  FOR  BREACH  OF  CONTRACT.  503 

Third.  It  was  at  one  time  held  in  England  that,  where  a  serv- 
ant is  wrongfully  discharged,  he  may,  if  he  chooses,  treat  the  con- 
tract of  hiring  as  continuing,  notwithstanding  the  master's  breach, 
and  if  he  holds  himself  in  readiness  to  perform  the  contract  on  his 
part,  and  is  able  and  willing  to  do  so,  recover  his  wages  for  the 
whole  term,  upon  the  ground  of  constructive  serviqe;  either  by  one 
action  after  the  expiration  of  the  term,  or  by  a  separate  action  for 
each  installment  of  wages  as  it  falls  due  by  the  terms  of  the  con- 
tract; and  this  doctrine  has  been  recognized  and  applied  by  some  of 
our  courts.^*  In  England,  however,  and  in  most  of  our  states, 
the  doctrine  of  constructive  service  has  been  repudiated;  and  it  is 
held  that,  where  a  servant  is  wrongfully  discharged,  the  relation 
ceases  to  exist,  and  that  only  one  action  can  be  maintained  against 
the  master,  which  must  be  either  special  assumpsit  for  breach  of 
the  contract,  to  recover  for  services  rendered  and  damages  for 
the  breach,  or  general  assumpsit  for  the  services  rendered,  and 
that  one  action  is  a  bar  to  any  other.^*  So  long  as  the  relation  of 
master  and  servant  actually  continues,  the  servant  may  sue  the 
master  for  each  installment  of  wages  as  it  becomes  due.^' 

Brooks,  75  Tex.  196,  12  S.  W.  975.     And  see  Booge  v.  Railroad  Co.,  33  Mo. 
212,  82  Am.  Dec.  160;   Wiseman  v.  Railroad  Co.,  1  Hilt.  (N.  Y.)  300. 

83Gandell  v.  Pontigny,  4  Camp.  375,  1  Starkie,  198;  Strauss  v.  Meertief, 
64  Ala.  299,  38  Am.  Rep.  8;  Isaacs  v.  Davies,  68  Ga.  109;  Smith  v.  Cashie  & 
Chowan  R.  &  Lmnber  Co.,  142  N.  C.  20,  54  S.  E.  7SS,  5  L.  R.  A.  (N.  S.)  439; 
Markham  v.  Markham,  110  N.  C.  356,  14  S.  E.  903;  Sharp  v.  McBride,  120 
La.  143,  45  South.  41. 

84  Elderton  v.  Emmens,  6  O.  B.  160;  Goodman  v.  Pocock,  15  Q.  B.  576; 
James  v.  Allen  Co.,  44  Ohio  St.  226,  6  N.  E.  246,  58  Am.  Rep.  821;  McMulIan 
V.  Dickinson  Co.,  60  Minn.  156,  62  N.  W.  120,  27  L.  R.  A.  409,  51  Am.  St.  Rep. 
511;  Howard  v.  Daly,  61  N.  Y.  362,  19  Am.  Rep.  285;  Keedy  v.  Long,  71  Md. 
385,  18  Atl.  704,  5  L.  R.  A.  759;  Olmstead  v.  Bach,  78  Md.  132,  27  Atl.  501 
22  L.  R.  A.  74,  44  Am.  St.  Rep.  273;  Richardson  v.  Machine  Works,  78  Ind. 
422,  41  Am.  Rep.  584;  ^Etna  Life  Ins.  Co.  v.  Nexsen,  84  Ind.  347,  43  Am.  Rep. 
91;  Willoughby  v.  Thomas,  24  Grat.  (Va.)  521;  Jones  v,  Dunton,  7  111.  App. 
580.  Thus,  where  a  servant  who  was  engaged  for  a  year  at  a  fixed  salary, 
payable  monthly,  was  discharged  at  the  end  of  two  months,  and  sued  for 
and  recovered  his  salary  up  to  that  time,  it  was  held  that  he  could  not  after- 
wards sue  for  the  breach  of  contract  by  the  master,  and  recover  for  wages 
after  the  discharge.    Keedy  v.  Long,  supra. 

3BClossman  v.  Lacoste,  28  Eng.  Law  &  Eq.  140;  McMullan  v.  Dickinson 
Co.,  60  Minn.  156.  62  N.  W.  120,  27  L.  R.  A.  409,  51  Am.  St.  Rep.  511;  Keedy 
V.  Long,  71  Md.  385,  18  Atl.  704,  5  L.  R,  A.  759.  But  see  Olmstead  v.  Bach, 
78  Md.  132,  27  Atl.  501,  22  L.  R.  A.  74,  44  Am.  St.  Rep.  273. 


504  MASTER  AND  SERVANT.  (Ch.  16 

SAME— IN    EQUITY— SPECIFIC    PERFORMANCE— INJUNCTION. 

264.  Ordinarily,  a  snit  cannot  be  maintained  in  equity  to  enforce  per- 
formance of  a  contract  of  hiring,  eitlier  directly,  by  decree  for 
specific  performance,  or  indirectly,  by  enjoining  a  threatened 
breach.  Bnt  a  promise  not  to  serve  elsevrhere,  and  other  nega- 
tive promises,  may  be  enjoined,  if  necessary  to  prevent  irrepa- 
rable injury. 

A  court  of  equity  will  not  decree  specific  performance  of  a  con- 
tract where  the  matter  of  the  contract  is  such  that  it  cannot  super- 
vise or  insure  its  execution.^*  It  will  not,  therefore,  decree  spe- 
cific performance  of  a  contract  of  hiring,  for  it  could  not,  from  the 
nature  of  the  contract,  insure  execution  of  its  decree."^  Such  a 
suit  would  also  be  defeated  in  most  cases  by  the  principle  that  a 
suit  for  specific  performance  will  not  lie  where  there  is  an  ade- 
quate remedy  at  law.  Nor,  for  the  same  reasons,  will  a  court 
of  equity  ordinarily  enjoin  the  breach  of  a  contract  of  hiring,  and 
thus  negatively  or  indirectly  enforce  specific  performance  of  it.^* 
But  where  the  contract  contains  negative  promises,  and  a  breach 
thereof  would  result  in  irreparable  injury,  a  breach  of  such  nega- 
tive promises  may  be  enjoined.  Thus,  a  contract  to  serve  another 
for  a  certain  period,  and  not  to  serve  any  one  else  during  that  time, 
could  not  be  specifically  enforced  by  compelling  the  party  to  serve, 
or  enjoining  him  from  abandoning  the  employment;  but  he  could  be 
enjoined  from  serving  any  one  else.^* 

8  6  Clark,  Cont.  701;    Fetter,  Eq.  267. 

3  7  Lnmley  v.  "Wagner,  1  De  Gex,  M.  &  G.  616;  Webb  v.  England.  29  Beav. 
44;  H.  W.  Gossard  Co.  v.  Crosby,  132  Iowa,  155,  109  N.  W.  483,  6  L.  R.  A. 
(N.  S.)  1115;  Clark's  Case,  1  Blackf.  (Ind.)  122,  12  Am,  Dec.  213;  Marble  Co. 
V.  Ripley,  10  Wall.  339,  19  L.  Ed.  955;  Iron  Age  Pub.  Co.  v.  W.  U.  Tel.  Co., 
83  Ala.  498,  3  South.  449,  3  Am.  St.  Rep.  758;  Wm.  Rogers  Manufg  Co.  v. 
Rogers,  58  Conn.  356,  20  Atl.  467,  7  L.  R.  A.  779,  18  Am,  St.  Rep.  278;  Lindsay 
V.  Glass,  119  Ind.  301,  21  N.  E  897;  Wukeliam  v.  Barker,  82  Cal.  46,  22  Pac. 
1131;  Campbell  v.  Rust,  85  Va.  653,  8  S.  E.  664.  Thus,  a  person  will  not  be 
compelled  to  perform  his  contract  to  sing  at  a  theater.  Lumley  v,  Wagner, 
supra, 

3  8  Fetter,  Eq.  296;  H.  W.  Gossard  Co.  v.  Crosby,  132  Iowa,  155,  109  N,  W. 
483,  6  L,  R.  A,  (N.  S.)  1115;  (containing  a  full  discussion).  Arthur  v.  Oakes, 
63  Fed.  318,  11  C.  C.  A,  209,  25  L.  R.  A.  414;  Wm.  Rogers  Manuf'g  Co.  v. 
Rogers,  58  Conn.  356,  20  Atl.  407,  7  L.  R.  A.  779,  18  Am.  St.  Rep.  278 ;  Cort 
V.  Lassard,  18  Or.  221,  22  Pac.  1054,  6  L.  R.  A.  653,  17  Am.  St.  Rep.  726 ;  Buruey 
V.  Ryle,  91  Ga.  701,  17  S.  E.  980. 

8  9  Lumley  v.  Wagner,  1  De  Gex,  M.  &  G.  616;  H.  W.  Gossard  Co.  v.  Cros- 


§§   265-271)       EIGHTS,  DUTIES,  AND   LIABILITIES   INTER   SE.  505 

RIGHTS,   DUTIES,   AND   LIABII<ITIES    INTER    SE. 

265.  The  master  cannot  chastise  his  servant.  , 

266.  The  master  is  not  bound  to  give  the  servant  a  character. 

267.  The  master,  in  the   absence   of  a  special  agreement  to  the   con- 

trary, is  entitled  to  the  entire  time  and  services  of  the  servant. 

268.  The  servant  is  bound  to  exercise  reasonable  care  not  to  injure  his 

master's  property,  or  property  of  others  in  his  master's  care. 

269.  A  conspiracy  betvreen  servants   to  injure  the  master's  business 

gives  the  master  a  right  of  action  against  them. 

270.  The  master  may  justify  a  battery  in  defense  of  the  servant,  and 

vice  versa. 

271.  It  is  the  duty  of  the  master  to  pay  the  servant  the  xrages  agreed 

upon,  unless  the  servant  has  forfeited  his  right  to  them.  By 
the  better  opinion,  if  the  servant  abandons  the  service  ivithout 
excuse,  or  is  discharged  for  good  cause,  he  forfeits  the  right  to 
ivages,  even  for  the  time  he  has  served.  Some  courts,  how^ever, 
even  in  these  cases,  alloxr  a  recovery  on  the  quantum  meruit. 

It  has  been  said  that  the  master  may  give  moderate  corporal 
correction  to  his  servant,  while  employed  in  his  service,  for  neg- 
ligence or  misconduct ;  but  this  doctrine  has  long  ago  become  ob- 
solete. If  a  master  chastises  his  servant,  whether  the  servant  be 
an  adult  or  a  minor  (other  than  an  apprentice),  he  is  guilty  of  an 
assault  and  battery;  and  he  is  not  only  liable  to  respond  to  the 
servant  in  damages,  but  is  also  liable  to  a  criminal  prosecution. *° 

by,  132  Iowa,  155,  109  N.  W.  483,  6  L.  R.  A.  (N.  S.)  1115;  Cort  v.  Lassard, 
18  Or.  221,  22  Pac.  1054,  6  Ia  R.  A.  653,  17  Ara.  St.  Rep.  726 ;  Daly  v.  Smith, 
49  How.  Prac.  (N.  Y.)  150;  McCaull  v.  Braham  (C.  C.)  16  Fed.  37;  Duff  v. 
Russell  (Super.  N.  T.)  14  N.  Y.  Supp.  134,  16  N.  Y.  Supp.  958;  Id.,  133  N. 
Y.  678,  31  N.  E.  622 ;  Hoyt  v.  Fuller  (Super.  N.  Y.)  19  N.  Y.  Supp.  962.  In 
Lumley  v.  Wagner,  supra,  a  professional  singer  was  sued  for  specific  perform- 
ance of  a  contract  to  sing  at  complainant's  theater  on  certain  terms,  and 
during  a  certain  period  to  sing  nowhere  else.  The  court  refused  to  enforce 
so  much  of  the  contract  as  related  to  the  promise  to  sing,  but  enjoined  a  breach 
of  the  promise  not  to  sing  elsewhere.  In  H.  W.  Gossard  Ck>.  v.  Crosby,  132 
Iowa,  155,  109  N,  W.  483,  6  L.  R.  A.  (N.  S.)  1115,  the  court,  after  a  full 
consideration  of  the  authorities,  arrived  at  the  conclusion  that,  even  when 
there  is  an  express  negative  covenant,  injunction  will  not  be  granted  save  in 
exceptional  cases,  where  by  reason  of  the  peculiar  or  extraordinary  character 
of  the  promised  service  a  violation  of  the  agreement  will  cause  injury  to  the 
other  party  for  which  an  action  at  law  will  afford  no  adequate  remedy. 

40  2  Kent,  Comm.  2G0 ;  Com.  v.  Baird,  1  Ashm.  (Pa.)  267 ;  Cooper  v.  State, 
8  Baxt.  (Tenn.)  324,  35  Am.  Rep.  704 ;   Matthews  v.  Terry,  10  Conn.  455. 


506  MASTER  AND  SERVANT.  (Ch.  16 

No  master  is  legally  bound  to  give  his  servant  a  character.**  If 
the  master  does  make  to  a  third  person,  in  confidence,  a  communi- 
cation in  the  nature  of  a  character,  such  communication  is  prima 
facie  privileged;  and  no  action  can  be  maintained  by  the  servant 
against  him  on  account  of  it,  if  made  bona  fide  and  witliout  malice.*^ 

On  a  contract  of  hiring  for  a  fixed  compensation,  the  master,  un- 
less such  a  result  is  excluded  by  the  terms  of  the  agreement,  is 
entitled  to  the  entire  time  and  services  of  the  servant  during  the 
time  for  which  he  has  engaged  to  work.*'  If,  during  this  time,  he 
works  for  others,  the  compensation  earned  for  such  work  belongs  to 
the  master,**  This  doctrine  does  not  prevent  the  servant  working 
for  others  outside  of  the  hours  for  which  the  servant  is  engaged.*" 
The  master,  however,  has  no  exclusive  right  to  the  inventions  of 
the  servant,*®  unless  there  is  an  agreement  to  that  effect,*^  or  the 
servant  is  employed  solely  to  exercise  his  inventive  ability  for  the 
master's  benefit.*' 

41  Eversley,  Dom.  Rel.  940  (where  the  subject  Is  discussed  at  length) ;  Car- 
rol V.  Bird,  3  Esp.  201 ;  Cleveland,  C,  C.  &  St.  L.  R.  Co,  v.  Jenkins,  174  111. 
398,  5]  N.  B.  811,  62  L.  R.  A.  922,  66  Am.  St.  Rep.  296 ;  New  York,  C.  &  St. 
L.  R.  Co.  V.  Schaffer,  65  Ohio  St.  414,  62  N.  B.  1036,  62  L.  R.  A.  931,  87  Am. 
St.  Rep.  628. 

42  Eversley,  Dom.  Rel.  940  et  seq.  (collecting  English  cases) ;  Gardner  v. 
Slade,  13  Q.  B,  801 ;  Toogood  v.  Spyring,  1  Cromp.,  M.  &  R.  181 ;  Weatherston 
V.  Hawkins,  1  Term  R.  110;  Missouri  Pac.  Ry.  Co.  v,  Behee,  2  Tex,  Civ.  App. 
107,  21  S.  W.  384.  If  the  communications  are  false,  and  made  maliciously, 
an  action  will  lie.  See  Rogers  v,  Clifton,  3  Bos.  &  P.  587 ;  Pattison  v.  Jones, 
8  Barn.  &  C.  578,  3  Man.  &  R.  101 ;  Kelly  v.  Partington,  4  Barn.  &  Adol.  700 ; 
Fountain  v.  Boodle,  3  Q.  B.  5 ;  McCauley  v.  Elrod  (Ky.)  27  S.  W.  867 ;  Vallery 
V.  State,  42  Neb.  123,  60  N.  W.  347. 

43  Seaburn  v.  Zachmann,  99  App,  Div.  218,  90  N,  T,  Supp,  1005 ;  Stebbins 
V.  Waterhouse,  58  Conn,  370,  20  Atl.  480, 

44  See  Leach  v.  Railroad  Co,,  86  Mo,  27,  56  Am.  Rep.  408;  Sumner  v. 
Nevin,  4  Cal.  App,  347,  87  Pac,  1105;  Stebbins  v.  Waterhouse,  58  Conn.  370, 
20  Atl.  480 ;    Hoyt  v.  Fuller  (Super.  N.  Y.)  19  N,  Y,  Supp,  962, 

46  Wallace  v,  De  Young,  98  111.  638,  38  Am.  Rep,  108;  Stone  v,  Bancroft, 
139  Cal.  78,  70  Pac.  1017,  72  Pac.  717.  But  see  Hughes  v,  Toledo,  etc.,  Scale 
Co.,  112  Mo.  App.  91,  86  S,  W,  895, 

46  Joliet  Mfg.  Co,  v.  Dice,  105  111.  649,  affirming  11  111,  App.  109;  Ft.  Wayne, 
C.  &  L.  R.  Co,  V,  Haberkorn,  15  Ind.  App.  479,  44  N.  E,  322, 

4  7  Portland  Iron  Works  v.  Willett,  49  Or,  245,  89  Pac,  421 ;  Hopedale  Mach. 
Co.  V.  Entwistle,  133  Mass,  443, 

48  Comielly  Mfg.  Co.  v.  Wattles,  49  N.  J.  Eq.  92,  23  Atl.  123;  Detroit  Lubri- 
cator Co.  V.  Lavigne  Mfg.  Co.,  151  Mich.  650,  115  N.  W.  988. 


§§    265-271)      RIGHTS,  DUTIES,  AND   LIABILITIES   INTER   8E.  507 

The  servant  is  always  liable  to  his  master  for  a  violation  of  his 
duty  whereby  the  master  is  injured.  He  is  bound  to  perform  the 
business  of  the  master  with  due  diligence  and  fidelity,  and  with  the 
degree  of  skill  usually  possessed  by  persons  of  ordinary  capacity 
engaged  in  the  same  business  or  employment;  and  if  he  fails  in 
this  duty,  to  the  master's  injury,  he  is  liable  to  the  master  in  dam- 
ages.*' A  servant  is  as  much  bound  to  exercise  reasonable  care 
not  to  injure  the  property  of  his  master  as  he  is  to  exercise  such 
care  in  relation  to  the  property  of  other  persons,  and  if  he  fails  in 
this  duty  he  is  liable  to  the  master  for  the  resulting  damages.^" 
In  like  manner,  he  is  liable  to  the  master  for  injury,  caused  by  his 
negligence,  to  property  of  third  persons,  intrusted  to  the  master, 
and  for  which  the  master  is  liable  to  such  third  persons;  and  it  is 
not  necessary  that  the  claim  of  the  latter  against  the  master  shall 
have  been  judicially  enforced  or  determined  before  suit  is  brought 
against  the  servant.^^  If  a  servant  uses  in  his  own  business  prop- 
erty of  his  master,  delivered  to  him  for  use  in  his  master's  business, 
he  is  liable  to  the  master  for  the  value  of  the  use,"  So,  too,  the 
servant  impliedly  contracts  not  to  divulge  the  secret  processes  or 
other  trade  secrets  of  the  master."  It  has  also  been  held  to  be  a 
violation  of  his  duty  if  in  his  capacity  as  an  employe  he  learns  that 
the  master  wishes  to  acquire  certain  property,  and  secretly  purchases 
the  same  in  order  to  sell  it  to  the  master  at  an  advanced  price.^* 

A  conspiracy  between  servants  to  injure  the  master  in  his  busi- 
ness gives  the  master  a  right  of  action  against  them  for  any  dam- 
ages sustained  by  him.  Thus,  where  18  journeymen  tailors,  working 
for  a  merchant  tailor,  by  conspiracy  between  them,  stopped  work 
simultaneously,    and    returned    their    work    to   him    unfinished,    and 

4  9  Smith  V.  Foran,  43  Conn.  244,  21  Am.  Rep.  647;  Brewer  v.  Wright,  25 
Neb.  305,  41  N.  W.  159 ;  Child  v.  Detroit  ilanuf  g  Co.,  72  Mich.  623,  40  N.  W. 
916 ;  Alpaugh  v.  Wood,  53  N.  J.  Law,  038,  23  Atl.  261 ;  Mobile  &  M.  Ry.  Co. 
V.  Clanton,  59  Ala.  392,  31  Am.  Rep.  15;  Woodrow  v.  Hawving,  105  Ala. 
240,  16  South.  720 ;    Prescott  v.  White,  18  111.  App.  322. 

50  Mobile  &  M.  Ry.  Co.  v.  Clanton,  59  Ala.  392,  31  Am.  Rep.  15 ;  Smith  v. 
Foran,  43  Conn.  244,  21  Am.  Rep.  047 ;   Walker  v.  Association,  18  Q.  B.  277. 

61  Smith  V.  Foran,  43  Conn.  244,  21  Am.  Rep.  647. 

62  Stebbins  v.  Waterhouse,  58  Conn.  370,  20  Atl.  480. 

63  Taylor  Iron  &  Steel  Co.  v.  Nichols  (N.  J.  Ch.)  65  Atl.  695;  O.  &  W.  Thum 
Co.  V.  Tloczynski,  114  Mich.  149,  72  N.  W.  140,  38  L.  R.  A.  200,  6S  Am.  St. 
Rep.  469. 

64  American  Circular  Loom  Co.  v.  Wilson,  198  Mass.  182,  84  N.  E.  133. 


508  MASTER  AND   SERVANT.  (Ch.  16 

worthless  in  that  condition,  and  he  was  unable  to  get  others  to  finish 
the  work,  it  was  held  that  he  might  maintain  an  action  against  them 
for  damages."* 

Master  and  servant  have  a  right  to  defend  each  other,  and  either 
can  justify  a  battery  in  defense  of  the  other.*** 

The  Right  to  Wages. 

Of  course,  a  servant  is  entitled  to  recover  his  wages  if  he  per- 
forms the  contract  of  hiring.  If  he  does  not  perform  in  full,  he 
is  nevertheless  entitled  to  recover  for  the  services  rendered,  if  he 
has  a  legal  excuse  for  nonperformance  in  full.'^  Thus,  if  either 
party  dies  before  the  end  of  the  term,  the  wages  may  be  recovered 
by  or  against  his  personal  representative,  as  the  case  may  be,  for 
the  services  actually  rendered,'**  So  incapacitating  illness  excuses 
further  performance,  and  past  wages  may  be  recovered.''*  The 
question  of  what  operates  as  an  excuse  is  explained  in  another  sec- 
tion.^o 

In  England,  and  in  most  of  our  states,  contracts  of  hiring  for  a 
specified  term  are  regarded  as  entire,  and  the  servant  is  not  allowed 
to  recover  for  his  services  unless  he  alleges  and  proves  full  per- 
formance on  his  part;  such  performance  being  held  a  condition 
precedent  to  any  liability  on  the  part  of  the  master.  And  it  is 
therefore  held  that  if  a  servant  willfully  abandons  the  service,  with- 
out cause,  before  the  end  of  the  term,  or  if  he  is  guilty  of  such  a 
breach  of  the  contract  as  justifies  the  master  in  discharging  him, 
he  cannot  recover  on  an  entire  contract,  even  for  the  services  ac- 
tually rendered  prior  to  the  abandonment  or  discharge.'^  If  the  con- 
es Mapstrick  v.  Rarage,  9  Neb.  390,  2  N.  W.  739.  31  Am.  Rep.  415. 

06  2  Kent,  Comm.  261 ;    1  Bl.  Oomm.  429. 

67  Clark,  Cont.  683,  684;  Robinson  v.  Davison,  L.  R.  6  Exch.  269;  Magida 
V.  Wiesen,  114  App.  Div.  8G6,  100  N.  Y.  Supp.  2G8.  He  may  recover  if  pre- 
vented by  the  master  from  performing  in  full.  Blood  v.  Enos,  12  Vt  625,  36 
Am.  Dec.  363. 

58  Yerrington  v.  Greene,  7  R.  I.  589,  84  Am.  Dec.  578. 

B9  Fenton  v.  Clark,  11  Vt  557 ;   ante,  p.  498,  and  cases  there  cited. 

60  Ante,  p.  499. 

61  Lilley  v.  Elwin,  11  Q.  B.  742;  Cutter  v.  Powell,  6  Term  R.  320;  Ridgway 
V.  Market  Co.,  3  Adol.  &  E.  171 ;  Stark  v.  Parker,  2  Pick.  (Mass.)  267,  13  Am. 
Dec.  425 ;  Olmstead  v.  Beale,  19  Pick.  (Mass.)  528 ;  Miller  v.  Goddard,  34  Me. 
102,  56  Am.  Dec.  G38 ;  Erving  v.  Ingram,  24  N.  J.  Law,  520 ;  Mather  v.  Brokaw, 
43  N.  J.  Law,  587;  Curlee  v.  Reiger,  45  111.  App.  544;  Badgley  v.  Heald,  4  Gilm. 


§§    265-271)      RIGHTS,   DUTIES,  AND   LIABILITIES   INTER    SE.  509 

tract  is  divisible,  the  rule  is  different.  Other  courts  regard  this 
doctrine  as  harsh,  and,  upon  equitable  principles,  allow  the  serv- 
ant, even  in  case  of  willful  abandonment,  or  dismissal  for  cause, 
to  recover  on  the  quantum  meruit  for  the  services  rendered.  He 
has  not  performed  on  his  part,  and  therefore  he  cannot  recover 
on  the  contract;  but  the  action  is  based  on  a  contract  implied,  or 
rather  created  by  law,  because  of  the  benefit  received  by  the  mas- 
ter from  the  services  rendered. ^^  In  such  an  action  the  recovery 
is  the  reasonable  value  of  the  services,  and  not  the  contract  price, 
but  it  cannot  exceed  the  contract  rate  of  compensation;  and  the 
master  may,  by  counterclaim,  set  up  any  damages  sustained  by  him 
by  reason  of  the  servant's  breach.®' 

Where  there  is  no  agreement  as  to  the  amount  of  compensa- 
tion to  be  paid  for  services,  the  law  implies  an  obligation  to  pay 
what  they  are  reasonably  worth.'*  If  the  rate  of  compensation,  or 
a   mode   of   determining   the   compensation,   is  fixed   by   the   agree- 

(111.)  64;  Hansen  v.  Erickson,  28  111.  257;  Diefenback  v.  Stark.  56  Wis.  462, 
14  N.  W.  621,  43  Am.  Rep.  719 ;  Nelichka  v,  Esterly,  29  Minn.  146,  12  N.  W. 
457;  Kohn  v.  Fandel,  29  Minn.  470,  13  N.  W.  904;  Helm  v.  Wilson,  4  Mo. 
41,  28  Am.  Dec.  336  (but  see,  contra,  Lee  v.  Asbbrook,  14  Mo.  378,  55  Am. 
Dec.  110) ;  Timberlake  v.  Tbayer,  71  Miss.  279,  14  South.  446,  24  L.  R.  A.  231  ; 
Hutchinson  v.  Wetmore,  2  Cal.  310,  56  Ajn.  Dec.  337 ;  Keane  v.  Liebler  (Sup.) 
107  N.  Y.  Supp.  102;  McMillan  v.  Vanderlip,  12  Johns.  (N.  Y.)  165,  7  Ajb. 
Dec.  299;  Jennings  v.  Camp,  13  Johns.  (N.  Y.)  94,  7  Aju.  Dec.  367;  Reab  v. 
Moor,  19  Johns.  (N.  Y.)  337;  Lantry  v.  Parks,  8  Gow.  (N.  Y.)  63.  If  the 
servant  is  not  guilty  of  any  willful  deviation  from  the  terms  of  the  con- 
tract, but  fails  to  fulfill  them,  and  has  performed  work  beneficial  to  the  mas- 
ter, he  may  recover  on  the  quantum  meruit.  Blood  v.  Etaos,  12  Vt  625,  36 
Am.  Dec.  363. 

62  Britton  v.  Turner,  6  N.  H.  481,  26  Am.  Dec.  713;  Lee  v.  Ashbrook,  14 
Mo.  378,  55  Am.  Dec.  110;  Lowe  v.  Sinklear,  27  Mo.  310;  Coe  v.  Smith,  4 
Ind.  79,  58  Am.  Dec.  618. 

6  3  Taylor  v.  Paterson,  9  La.  Ann.  251;  Newman  v.  Reagan,  63  Ga.  755; 
Coe  V.  Smith,  4  Ind.  79,  58  Am.  Dec.  618. 

64  Millar  v.  Cuddy,  43  Mich.  273,  5  N.  W.  316,  38  Am.  Rep.  181;  Elwell  v. 
Roper,  72  N.  H.  585,  58  Atl.  507 ;  Heudrickson  v.  Woods,  77  App.  Div.  644,  78 
N.  Y.  Supp.  949 ;  Ryan  v.  Dayton,  25  Conn.  188,  65  Am.  Dec.  560 ;  Tucker  v. 
Preston,  60  Vt.  473,  11  Atl.  726 ;  Farrell  v.  Dooley,  17  111.  App.  66.  Where  the 
master  agreed  to  pay  "the  same  vrages  as  shall  be  paid  to  other  employes 
filling  similar  positions,"  and  it  does  not  appear  that  there  were  other  men 
filling  similar  positions,  the  servant  may  recover  what  the  services  were  rea- 
onably  worth.  Kent  Furniture  Manuf'g  Co.  v.  Ransom,  46  Mich.  416,  9  N.  W. 
454.    See,  also,  Crusoe  v.  Clark,  127  Cal.  341,  59  Pac.  700. 


510  MASTER  AND   SERVANT.  (Ch.  IG 

ment,  it  must  govern.'"  It  is  competent  for  the  parties  to  leave  it 
to  the  master — or,  indeed,  to  the  servant,  either — to  fix  the  com- 
pensation, after  the  services  are  rendered,  at  such  a  sum  as  he  may 
think  right  and  proper;  and  his  determination  as  to  the  amount 
will  be  controlling,  in  the  absence  of  fraud  or  bad  faith. ®® 

While  a  servant  cannot  as  a  rule  recover  additional  compensa- 
tion for  extra  work  performed  within  the  scope  of  his  employment, 
in  the  absence  of  an  express  agreement,'^  yet  for  work  outside  of 
the  scope  of  his  regular  employment,  performed  at  the  request  of 
the  master,  he  is  entitled  to  additional  compensation,  though  there 
was  no  express  agreement  therefor.** 


SAME— MASTER'S   LIABIIjITY   FOR   INJURIES   TO   SERVANT. 

272.  It  is  the  duty  of  the  master — ivhich  he  cannot  delegate,  and  for  a 

breach  of  \irhich  he  is  liable  to  the  servant,  in  the  case  of  per- 
sonal injuries — to  use  ordinary  care — 

(a)  To  provide  reasonably  safe   and  suitable  tools  and   appliances. 

(b)  To  provide  reasonably  safe  premises. 

(c)  To  provide  competent  fello\7  servants,  and  a  sufficient  number  of 

them. 

(d)  To    promulgate   x'ules,   ivhere   the   nature    of   the    urork   requires 

them. 

(e)  To  instruct  and  ivarn  young  and  inexperienced  servants. 

273.  The  master  is  liable  only  for  failure  to  exercise  reasonable  care 

in  the  performance  of  these  duties.     He  is  not  an  insurer. 


«6  Smith  v.  The  Joshua  lyevines  (D.  C.)  4  Fed.  846.  And  see  Laubach  v. 
Cedar  Rapids  Supply  Co.,  122  Iowa,  643,  98  N.  W.  511. 

60  Butler  v.  Mill  Co.,  28  Minn.  205,  9  N.  W.  697,  41  Am.  Rep.  277;  Millar 
V.  Cuddy,  43  Mich.  273,  5  N.  W.  316,  38  Am.  Rep.  181.  To  the  same  effect, 
see  Alford  v.  Cook  (Sup.)  107  N.  Y.  Supp.  710.  The  mere  fact  that  the  master, 
under  such  an  agreement,  fixes  the  compensation  at  an  amount  considerably 
less  than  the  court,  upon  the  evidence,  finds  that  the  services  were  reasonably 
worth,  is  not  of  itself  suflScient  to  justify  an  inference  of  fraud  or  bad  faith. 
Butler  V.  Mill  Co.,  supra. 

67  Cany  v.  Halleck,  9  Cal.  198;  Schurr  v.  Savigny,  85  Mich.  144,  48  N.  W. 
547. 

68  Brown  v.  Crown  Gold  Millins  Co.,  150  Cal.  376,  89  Pac.  86;  Dull  v.  Bram- 
hall,  49  111.  364;  Cincinnati,  I.  &  C.  R.  Co.  v.  Clarkson,  7  Ind.  595.  See, 
also,  Alford  v.  Cook  (Sup.)  107  N.  Y.  Supp.  710,  holding  that,  under  a  contract 
to  pay  a  salesman  an  additional  sum  if  his  sales  were  satisfactory,  it  lay 
with  the  employer  alone  to  determine  whether  the  sales  were  satisfactory. 


i 


§§  272-275)    master's  liability  for  injuries  to  servant,  511 

274.  On  entering  the  service  a  servant  impliedly  contracts  tliat  lie  pos- 

sesses the  ordinary  skill  and  experience  of  those  engaged  in  the 
occupation  he  undertakes,  that  he  -will  exercise  ordinary  care  to 
protect  himself  while  engaged  in  that  occupation,  and  that  he 
will  assume  the  risks  of  the  employment,  including  the  risks 
arising  from  the  negligence  of  fellow  servants.  But  to  this 
rule  there  are  a  number  of  exceptions. 

275.  In  many  states  the  general  rules  as  to  the  liahility  of  the  mas- 

ter for  injuries  to  his  servant  have  been  modified  by  statutes, 
w^hich  in  most  instances  enlarge  the  liability  of  the  master. 

A  master  is  under  an  obligation,  implied  in  the  contract  of  hir- 
ing, to  use  reasonable  and  ordinary  care  to  provide  suitable  means 
and  appliances  to  enable  the  servant  to  do  his  work  as  safely  as 
the  hazards  incident  to  the  work  will  permit.*®  If  he  fails  to 
perform  this  duty,  and  by  reason  of  his  neglect  the  servant  is  in- 
jured, he  is  liable  in  damages.  As  we  shall  see,  ordinary  care, 
and  such  care  only,  is  required.  A  master  does  not  insure  the 
absolute  safety  of  the  tools  and  appliances  furnished.  He  is  bound 
to  use  ordinary  care  to  provide  appliances  that  are  reasonably  safe 
and   suitable.'^"      He    is    not    bound    to   supply   the   best,    safest,    or 

60  Bailey,  Mast.  Liab.  2,  13;  Kotera  v.  American  Smelting  &  Refining  Co. 
(Neb.)  114  N.  W.  945;  Carter  v.  McDermott,  29  App.  D.  C.  145,  10  L.  R.  A. 
(N.  S.)  1103 ;  Newton  v.  New  York  Cent.  &  H.  R.  R.  Co.,  96  App.  Div.  81,  S9 
N.  Y.  Supp.  23,  affirmed  183  N.  Y.  .556,  76  N.  E.  1102;  Gibson  v.  Railroad  Co., 
46  Mo.  163,  2  Am.  Rep.  497;  HouRh  v.  Railway  Co.,  100  U.  S.  213,  25  L. 
Ed.  612;  Columbian  Enameling  &  Stamping  Co.  v.  Burke,  37  Ind.  App.  518, 
77  N.  E.  409,  117  Am.  St.  Rep.  337 ;  Pagan  v.  Southern  Ry.  Co..  78  S.  C.  413, 
59  S.  E.  32 ;  Gomez  v.  Tracey,  115  La.  824,  40  South.  234 ;  Flike  v.  Railway 
Co.,  53  N.  Y.  549,  13  Am.  Rep.  545;  Cone  v.  Railway  Co.,  81  N.  Y.  207,  37 
Am.  Rep.  491 ;  Chicago  &  N.  W.  Ry.  Co.  v.  Jackson,  55  111.  492,  8  Am.  Rep.  661 ; 
Toledo,  W.  &  W.  Ry.  Co.  v.  Ingraham,  77  111.  300 ;  Ford  v.  Railway  Co.,  110 
Mass.  240,  14  Am.  Rep.  598;  Stephenson  v.  Duncan,  73  Wis.  406,  41  N.  W. 
337,  9  Am.  St.  Rep.  806. 

7  0  Washington  &  G.  R.  Co.  v.  McDade,  135  U.  S.  571,  10  Sup.  Ct.  1044,  34 
L.  Ed.  235 ;  Monson  v.  Crane,  99  Minn.  186,  108  N.  W.  933  ;  McDonald  v. 
California  Timber  Co.  (Cal.  App.)  94  Pac.  376;  Couroy  v.  Morrill  &  Whitton 
Const.  Co.,  194  Mass.  476,  80  N.  E.  489 ;  Dunn  v.  Nicholson,  117  Mo.  App.  374, 
93  S.  W.  809;  Bauman  v.  Cowdin  (N.  J.  Sup.)  66  Atl.  914;  Armour  &  Co. 
V.  Russell,  144  Fed.  614,  75  C.  C  A.  416,  6  L.  R.  A.  (N.  S.)  602 ;  Chicago,  B. 
&  Q.  R.  Co.  V.  Avery,  109  111.  314;  Pennsylvania  Co.  v.  Lynch,  90  111.  333; 
Richardson  v.  Cooper,  88  111.  270;  Marsh  v.  Chickering,  101  N.  Y.  400,  5  N. 
E.  56;  Lyttle  v.  Railway  Co.,  84  Mich.  289,  47  N.  W.  571.  In  Bauman  v. 
Cowdin  (N.  J.  Sup.)  66  Atl.  014,  It  was  said  that  a  master  is  not  liable  when 
an  accident  happens  to  a  servant  on  the  first  occasion  when  the  apparatus 


512  MASTER  AND  SERVANT.  (Ch.  16 

newest/*  The  test  is  general  use  in  the  business."  He  must  keep 
his  appliances  in  repair,  and  provide  against  liability  to  decay  from 
age,  or  wear  out  from  use ; ""  but  this  does  not  apply  to  appliances 
which  the  servant  is  employed  to  repair/*  He  is  not  liable  for 
hidden  defects,  which  were  unknown,  and  which  could  not  have 
been  discovered  in  the  exercise  of  ordinary  care/** 

purchased  of  a  reliable  manufacturer  is  used,  if  the  method  of  use  Is  the 
same  method  as  would  be  required  to  make  a  proper  test.  A  master  is  not 
liable  if  the  machinery  was  in  a  reasonably  safe  condition  or  if  there  was 
some  defective  part,  but  such  defective  part  did  not  cause  the  injury.  Atoka 
Ck)al  &  Mining  Co.  v.  Miller  (Ind.  T.)  104  S.  W.  555. 

71  Bailey,  Mast.  Liab.  23  et  seq. ;  Vinson  v.  Willingham  Cotton  Mills,  2  Ga. 
App.  53,  58  S.  E.  413;  Smith  v.  Chicago  Junction  Ry.  Co.,  127  111.  App.  89; 
Blust  V,  Pacific  States  Telephone  Co.,  48  Or.  34,  84  Pac.  847;  Monson  v. 
Crane,  99  Minn.  186,  108  N.  W.  933 ;  Lehigh  &  Wilkes-Barre  Coal  Co.  v.  ITnyes, 
128  Pa.  294,  18  Atl.  387.  The  master  is  not  bound  to  furnish  any  particular 
make  of  machinery.  Imhoof  v.  Northwestern  Lumber  Co.,  43  Wash.  387,  86 
Pac.  650.  5  L.  R.  A.  441,  15  Am.  St.  Rep.  680. 

72  Cases  cited  in  preceding  note;  Sparks  v.  River  &  Harbor  Improvement 
Co.,  74  N.  J.  Law,  818,  67  Atl.  600;  Filbert  v.  New  York,  N.  H.  &  H.  R.  Co., 
95  App.  Div.  199,  88  N.  Y.  Supp.  438,  affirmed  184  N.  Y.  522,  76  N.  E.  1095; 
Central  Granaries  Co.  v.  Ault,  75  Neb.  249,  106  N.  W.  418,  107  N.  W.  1015; 
Northern  Cent.  Ry.  Co.  v.  Husson,  101  Pa.  1,  47  Am.  Rep.  690;  The  Maharajah 
(D.  C.)  40  Fed.  784 ;   Vinton  v.  Schwab,  32  Vt.  614. 

73  Richardson  v.  Cooper,  88  111.  270;  International  Mercantile  Marine  Co.  v. 
Fleming,  151  Fed.  203,  80  C.  C.  A.  479;  Armour  &  Co.  v.  Russell,  144  Fed. 
614,  75  C.  C.  A.  416,  6  L.  R.  A.  (N.  S.)  602;  Gomez  v.  Tracey,  115  La.  824, 
40  South.  234 ;  Columbian  Enameling  &  Stamping  Co.  v.  Burke,  37  Ind.  App. 
518,  77  N.  E.  409,  117  Am.  St.  Rep.  337;  Chicago,  K.  &  W.  R.  Co.  v.  Blevius, 
46  Kan.  370,  26  Pac.  687 ;  Carter  v.  McDermott,  29  App.  D.  C,  145,  10  L.  R.  A. 
(N.  S.)  1103 ;  Newton  v.  New  York  Cent.  &  H.  R.  R.  Co.,  96  App.  Div.  81,  89 
N.  Y.  Supp.  23,  affirmed  183  N.  Y.  556,  76  N.  E.  1102;  Pagan  v.  Southern 
Ry.  Co.,  78  S.  C.  413,  59  S.  E.  32 ;  Indiana  Car  Co.  v.  Parker,  100  Ind.  193 ; 
Rapho  V.  Moore,  68  Pa.  404,  8  Am.  Rep.  202. 

7  4  Murphy  v.  Railway  Co.,  88  N.  Y.  146,  42  Am.  Rep.  240;  Howland  v. 
Railway  Co.,  54  Wis.  226,  11  N.  W.  529 ;  Carlson  v.  Railway  Co.,  21  Or.  450, 
28  Pac.  497.  See,  also,  Healy  v.  Buffalo,  R.  &  P.  Ry.  Co.,  Ill  App.  Div.  618, 
97  N.  Y.  Supp.  801,  where  the  defect  was  easily  discoverable  and  could  have 
been  repaired  by  the  servant. 

7  6  Columbus,  C.  &  I.  C.  Ry.  Co.  v.  Troesch,  68  111.  545,  18  Am.  Rep.  578; 
New  Castle  Bridge  Co.  v.  Steele,  38  Ind.  App.  194,  78  N.  E.  208 ;  Bennett  v. 
Himmelberger-Harrison  Lumber  Co.,  110  Mo.  App.  699,  94  S.  W.  808 ;  Chicago 
&  N.  W.  R.  Co.  V.  Scheuring,  4  111.  App.  533;  Gutridge  v.  Railway  Co.,  lOJ 
Mo.  520,  16  S.  W.  943;  Hart  v.  Naumburg,  123  N.  Y.  041,  25  N.  E.  385. 


§§  273-275)     master's  liability  for  injuries  to  servant.  513 

While  the  proper  fulfillment  of  his  obligations  imposes  on  the 
master  the  duty  of  inspection/'  he  is  not  bound  to  inspect  simple 
tools/ ^  or  to  make  unusual  inspections  and  tests  to  discover  de- 
fects/* The  master  is  not  bound  to  provide  against  danger  from 
an  unnecessary  or  inappropriate  use  of  appliances  by  the  servant/^ 
It  is  also  one  of  the  implied  duties  of  the  master  to  provide  a 
suitable  and  reasonably  safe  place  for  the  doing  of  the  work  to 
be  performed  by  the  servant,  and  to  keep  the  premises  in  a  reason- 
ably safe  condition.®**  Thus  he  may  be  liable  for  leaving  danger- 
's Columbian  Enameling  &  Stamping  Oo.  v.  Burke,  37  Ind.  App.  518,  77  N. 
E.  409,  117  Am.  St.  Rep.  337 ;  Gomez  v.  Tracey,  115  La.  824,  40  South.  234  ; 
Missouri,  K.  &  T.  Ry.  Co.  v.  Hagan,  42  Tex.  Civ.  App.  133,  93  S.  W.  1014; 
Galveston,  H.  &  S.  A.  Ry.  Co.  v.  Parish  (Tex.  Civ.  App.)  93  S.  WI.  682.  A 
servant  is  not  obliged  to  pass  judgment  on  his  master's  method  of  transacting 
his  business,  but  may  assume  that  reasonable  care  will  be  used  in  furnishing 
appliances  necessary  for  its  operation.  Carter  v.  McDermott,  29  App.  D.  C. 
145,  10  L.  R.  A.  (N.  S.)  1103. 

7  7  Koschman  v.  Ash,  98  Minn.  312,  108  N.  W.  514,  116  Am.  St.  Rep.  373; 
Meyer  v.  Ladewig,  130  Wis.  566,  110  N.  W.  419,  13  L.  R.  A.  (N.  S.)  684.  But 
the  rule  that  a  master  is  not  liable  for  injuries  resulting  from  defects  in 
very  simple  tools  has  no  application  where  the  master  has  actual  knowledge 
of  the  defect  and  the  employe  has  not.  Stork  v.  Charles  Stolper  Cooperage 
Co.,  127  Wis.  318,  106  N.  W.  841. 

7  8  Brossman  v.  Drake  Standard  Mach.  Works,  232  111.  412,  83  N.  E.  936. 

79  Chicago  &  A.  R.  Co.  v.  Mahoney,  4  111.  App.  262;  Chicago,  B.  &  Q.  R. 
Co.  V.  Abend,  7  111.  App.  130 ;  .Tayue  v.  Sebewaing  Coal  Co.,  108  Mich.  242,  65 
N.  W.  971.  See,  also,  Denver  &  R.  G.  R.  Co.  v.  Sporleder,  39  Colo.  142,  89 
Pac.  55,  holding  that,  where  the  servant  discarded  the  tools  furnished  him 
by  the  master,  not  because  they  were  unsafe,  but  because  they  wei'e  not  handy, 
and  did  not  request  the  master  to  furnish  other  tools,  but  procured  tools 
which  seemed  to  him  to  be  more  convenient  by  which  he  was  subsequently 
injured,  he  was  not  entitled  to  claim  that  the  master  was  negligent  in  failing 
to  furnish  him  with  safe  tools. 

80  Bailey,  Mast.  Liab.  2,  34;  Pagan  v.  Southern  Ry.  Co.,  78  S.  C.  413,  59 
S.  E.  32;  Armour  &  Co.  v.  Russell,  144  Fed.  614,  75  O.  C.  A.  416,  6  L.  R.  A. 
(N.  S.)  602;  Kotera  v.  American  Smelting  &  Refining  Co.  (Neb.)  114  N.  W. 
945 ;  Coombs  v.  Cordage  Co.,  102  Mass.  572,  3  Am.  Rep.  506 ;  Bessex  v.  Rail- 
way Co.,  45  Wis.  477 ;  Swoboda  v.  Ward,  40  Mich.  423 ;  Smith  v.  Car  Works, 
60  Mich.  501,  27  N.  W.  662,  1  Am.  St.  Rep.  542 ;  Van  Dusen  v.  Letellier,  78 
Mich.  502,  44  N.  W.  572;  Haskell  &  Barker  Car  Co.  v.  Prezezdziankowski 
(Ind.)  83  N.  B.  626,  14  L.  R.  A.  (N.  S.)  972;  St.  Louis,  L  M.  &  S.  Ry.  Co.  v. 
Andrews,  79  Ark,  437,  96  S.  W.  183  ;  Williams  v.  Sleepy  Hollow  Min.  Co.,  37 
Colo.  62,  86  Pac.  337,  7  L.  R.  A.  (N.  S.)  1170;  Rigsby  v.  Oil  Well  Supply  Co., 
115  Mo.  App.  297,  91  S.  W.  400;  Foreman  v.  Eagle  Rice  Mill  Co.,  117  La.  227, 
41  South.  555.     A  higher  degree  of  care  in  providing  a  safe  place  in  which 

TIFF.P.&  D.Rel.(2d  Ed.)— 33 


514  MASTER  AND  SERVANT.  (Ch.  16 

ous  machinery,  such  as  cogwheels,  knives,  saws,  etc.,  so  exposed 
that  it  may  cause  injury,  when  it  ought  to  be  covered  or  protected,*^ 
or  where,  unknown  to  the  servant,  he  allows  stairways  to  remain 
in  a  dangerous  condition. ^^  But  the  rule  requiring  the  master  to 
furnish  a  safe  place  to  work  does  not  apply  when  the  servant  is 
engaged  in  actually  creating  the  place, ^^  nor  to  servants  whose  duty 
it  is  to  make  dangerous  places  safe,**  nor  when  the  work  in  itself 
constantly  changes  the  character  for  safety  of  the  place  where  the 
servant  is  employed.*" 

to  work  is  Imposed  on  an  employer  whose  employes  are  underground,  with 
scant  means  of  escape  in  case  of  danger,  than  where  the  employSs  are  not 
subject  to  unseen  dangers,  or  are  in  a  position  to  escape  readily.  Williams 
V.  Sleepy  Hollow  Min.  Co.,  37  Colo.  62,  86  Pac.  337,  7  L.  R.  A.  (N.  S.)  1170.  The 
duty  to  furnish  a  safe  place  to  work  is  a  continuing  one.  Clegg  v.  Seaboard 
Steel  Casting  Co.,  34  Pa.  Super.  Ct.  63 ;  Gillespie  v.  Grand  Trunk  Ry.  Co.,  150 
Mich.  303,  113  N.  W.  1116.  But  see  Howard  v.  Beldenville  Lumber  Co.,  129 
Wis.  98,  108  N.  W.  48,  where  it  is  held  that,  while  a  master  is  absolutely 
required  to  furnish  a  servant  with  a  safe  place  to  work,  he  is  required  to 
exercise  only  ordinary  care  to  keep  the  place  safe,  and  if  it  becomes  unsafe 
and  the  servant  is  injured  before  the  master  has  knowledge  of  the  existence 
of  the  danger  or  a  reasonable  opportunity  to  obtain  such  knowledge  and 
remedy  the  defect,  he  is  not  liable. 

81  Nadau  v.  Lumber  Co.,  76  Wis.  128,  43  N.  W.  1135,  20  Am.  St.  Rep.  29; 
Chopin  V.  Combined  Locks  Paper  Co.,  134  Wis.  35,  114  N.  W.  95;  Flynn  v. 
Prince,  Colliers  &  Marston  Co.,  198  Mass.  224,  84  N.  E.  321;  Jones  v.  R.  J. 
Reynolds  Tobacco  Co.,  141  N.  C.  202,  53  S.  E.  849 ;  Westman  v.  Wind  River 
Lumber  Co.  (Or.)  91  Pac.  478;  Roff  v.  Summit  Lumber  Co.,  119  La.  571,  44 
South.  302.  The  covering  of  dangerous  machinery  is  provided  for  by  stat- 
ute in  most  states.  It  has  been  held  in  Indiana  that  a  failure  to  comply  with 
the  statute  is  negligence  per  se.  United  States  Cement  Co.  v.  Cooper  (Ind. 
App.)  82  N.  B.  981.  In  Iowa  it  has  been  held  that  the  statute  does  not  im- 
pose any  greater  duty  on  the  master  than  would  have  existed  without  it 
Sutton  V.  Des  Moines  Bakery  Co.,  135  Iowa,  390,  112  N.  W.  836. 

8  2  Sweet  V.  Coal  Co.,  78  Wis.  127,  47  N.  W.  182,  9  L.  R.  A.  861. 

83  Bertolami  v.  United  Engineering  &  Contracting  Co.,  120  App.  Div.  192, 
105  N.  Y.  Supp.  90. 

84Kellyville  Coal  Co.  v.  Bruzas,  223  HI.  595,  79  N.  B.  309;  Norman  v. 
Southern  Ry.  Co.  (Tenn.)  104  S.  W.  1088;  Bird  v.  Utica  Gold  Min.  Co.,  2  Cal. 
App.  074,  84  Pac.  256. 

8  5  Village  of  Montgomery  v.  Robertson,  229  111.  406,  82  N.  E.  396;  Norman 
V.  Southern  Ry.  Co.  (Tenn.)  104  S.  W.  1088;  Bird  v.  Utica  Gold  Min.  Co.,  2 
Oal.  App.  674,  84  Pac.  256.  Where  a  servant  is  engaged  In  the  business  of 
wrecking  a  building,  his  master  is  not  obligated  to  furnish  him  with  a  safe 
place  to  work.     William  Grace  Co.  v.  Kane,  129  HI.  App.  247. 


ill 


§§  272-275)     master's  liability  for  injuries  to  servant.  515 

It  is  also  the  implied  duty  of  the  master  to  provide  other  serv- 
ants sufficient  in  number,  and  reasonably  skilled  and  competent  for 
the  performance  of  the  service,  so  that  the  servant  will  not  be  ex- 
posed to  unnecessary  risk  from  unskillful  or  incompetent  fellow  serv- 
ants, or  from  a  lack  of  a  sufficient  number  of  them.^'  If  he  know- 
ingly employs  or  retains  a  careless  person  or  drunkard,  for  instance, 
he  may  be  liable  if  injury  results  to  a  fellow  servant.  If  there  is 
no  negligence,  there  is  no  liability  for  injuries  caused  by  an  in- 
competent   servant.®^ 

While  it  is  generally  sufficient  if  the  master  adopts  the  usual  and 
customary  methods  of  work,*^  it  is  not  his  duty  to  adopt  the  most 
approved  methods ;  ®®  and  negligence  will  not  be  imputed  to  him, 
though  he  has  not  adopted  methods  used  by  others  in  the  same  busi- 
ness.®** If,  however,  the  master  adopts  a  dangerous  method  of 
work,  he  should  take  correspondingly  appropriate  precautions  to 
guard  against  the  increased  danger.^^  So  it  is  the  duty  of  a  master, 
where  the  nature  of  his  business  requires  it,  as  in  the  case  of  rail- 


8  6  Bailey,  Mast  Llab.  3,  46;  Pennsylvania  R.  Co.  v.  Hartell,  157  Fed.  667, 
85  C.  C.  A.  335;  Indiana  Union  Traction  Co.  v.  Pring  (Ind.  App.)  83  N.  E. 
733 ;  Laning  v.  Railroad  Co.,  49  N.  Y.  521,  10  Am.  Rep.  417 ;  Booth  v.  Railroad 
Co.,  73  N.  Y.  38,  29  Am.  Rep.  97 ;  Baulec  v.  Railway  Co.,  59  N.  Y.  356,  17  Am. 
Rep.  325;  Wabash  Ry.  Co.  v.  McDaniels,  107  U.  S.  454,  2  Sup.  Ct.  932,  27  Lu 
Ed.  005 ;  Horton  v.  Seaboard  Air  Line  Ry.,  145  N.  C.  132,  58  S.  E.  993 ;  Carter 
V.  McDermott,  29  App.  D.  C.  145,  10  L.  R.  A.  (N.  S.)  1103 ;  Hamann  v.  Mil- 
waukee Bridge  Co.,  127  Wis.  550,  106  N.  W.  1081 ;  Chicago  &  N.  W.  R.  Co. 
V.  Moranda,  108  111.  576;  Moss  v.  Railroad,  49  Mo.  167,  8  Am.  Rep.  126;  Gil- 
man  V.  Railway  Corp.,  10  Allen  (Mass.)  233,  87  Am.  Dec.  635 ;  Harper  v.  Rail- 
way Co.,  47  Mo.  567,  4  Am.  Rep.  353 ;  Michigan  Cent.  R.  Co.  v.  Dolan,  32  Mich. 
513;  Hilts  v.  Railway  Co.,  55  Mich.  440,  21  N.  W.  878;  Michigan  Cent.  R. 
Co.  V.  Gilbert,  46  Mich.  179,  9  N.  W.  243.  A  master,  in  selecting  employes, 
must  exercise  reasonable  care,  considering  the  nature  of  the  employment,  and, 
if  that  involves  special  knowledge,  only  men  of  special  knowledge  should  be 
engaged.     Woodward  Iron  Co.  v.  Curl  (Ala.)  44  South.  969. 

87  Columbus,  C.  &  I.  C.  Ry.  Co.  v.  Troesch,  68  111.  545,  18  Am.  Rep.  578; 
Woodward  Iron  Co.  v.  Curl  (Ala.)  44  South.  969.  The  fact  that  the  employe 
did  not  understand  English  does  not  show  negligence  on  the  part  of  the  mas- 
ter in  employing  him.  Date  v.  New  York  Glucose  Co.,  114  App.  Div.  789,  100 
N.  Y.  Supp.  171,  affirmed  190  N.  Y.  510,  83  N.  E.  1124. 

88  Larson  v.  St.  Paul,  M.  &  M.  Ry.  Co.,  43  Minn.  423,  45  N.  W.  722;  Allen 
V.  Burlington,  C.  R.  &  N.  Ry.  Co.,  64  Iowa,  94,  19  N.  W.  870. 

8  9  O'Neil  V.  Karr,  110  App.  Div.  571,  97  N.  Y.  Supp.  148. 

80  Pearsall  v.  New  York  Cent.  &  H.  R.  R.  Co.,  189  N.  Y.  474,  82  N.  E.  752. 

91  Smith  V.  Rock  Island,  A.  &  L.  R.  Co.,  119  La.  537,  44  South.  290. 


516  MASTER   AND   SERVANT.  (Ch.  10 

road  companies,  to  promulgate  rules  for  the  protection  of  employes.®* 
It  is  the  master's  duty  to  inform  the  servant  of  latent  dangers, 
or  dangers  arising  from  extraneous  causes,  known  to  him,  where 
the  servant  has  no  knowledge  of  them,  and  knowledge  cannot  be 
imputed  to  him.'^  And  he  must  inform  the  servant  of  obvious 
dangers,  where  the  servant  cannot  be  presumed  to  appreciate  or 
understand  them.  This  is  peculiarly  applicable  to  servants  of  ten- 
der years.'*     It  applies  also,  however,  to  inexperienced  persons  of 


»2  Bailey,  Mast.  Llab.  71;  Slater  v.  Jewett,  85  N.  Y.  62,  39  Am.  Rep.  627; 
Abel  V.  Canal  Co.,  103  N.  Y.  581,  9  N.  E.  825,  57  Am.  Rep.  773;  Illinois 
Cent.  R.  Co.  v.  Whittemore,  43  111.  420,  92  Am.  Dec.  138;  Chicago,  B.  &  Q. 
R.  Co.  V.  McLallen,  84  111.  109 ;  Lewis  v.  Seif ert,  116  Pa.  628,  11  Atl.  514,  2 
Am.  St.  Rep.  631 ;  Moore  v.  Dublin  Cotton  Mills,  127  Ga.  609,  56  S.  E.  839, 
10  L.  R.  A.  (N.  S.)  772 ;  Ryan  v.  Delaware  &  Hudson  Co.,  114  App.  Div,  268, 
99  N.  Y.  Supp.  794,  affirmed  188  N.  Y.  559,  80  N.  E.  1119;  Morrison  v.  San 
Pedro,  L.  A.  &  S.  L.  R.  Co.,  32  Utah,  85,  88  Pac.  998 ;  Illinois  Cent  R.  Co.  v. 
Panebiango,  129  111.  App.  1,  affirmed  227  111.  170,  81  N.  E.  53;  St.  J^ouis  & 
S.  F.  R.  Co.  V.  Ames  (Tex.  Civ.  App.)  94  S.  W.  1112.  Failure  to  make  a  rule 
will  not  constitute  negligence  when  no  occasion  had  ever  arisen  to  show  the 
necessity  therefor  prior  to  the  injury  complained  of.  St.  Louis,  K.  O.  &  C.  R. 
Co.  V.  Conway,  156  Fed.  234,  86  C.  C.  A,  1.  To  bind  the  servant  the  rule  must 
be  properly  published  or  brought  to  his  attention.  Anderson  v.  Great  North- 
ern Ry.  Co.,  102  Minn.  355,  113  N.  W.  913.  When  the  duties  to  be  performed 
are  simple  and  the  appliances  easily  understood,  the  promulgation  of  rules 
Is  not  necessary.     Blust  v.  Pacific  States  Telephone  Co.,  48  Or.  34,  84  Pac.  847. 

9  3  Bailey,  Mast.  Liab.  109  et  seq. ;  Coombs  v.  Cordage  Co.,  102  Mass.  572, 
3  Am.  Rep.  506 ;  Baxter  v.  Roberts,  44  Cal.  187,  13  Am.  Rep.  160 ;  Marklewitz 
V.  Olds  Motor  Works,  152  Mich.  113,  115  N.  W.  999 ;  Swiercz  v.  Illinois  Steel 
Co.,  231  111.  456,  83  N.  E.  168;  Hardy  v.  Chicago,  R.  I.  &  P.  Ry.  Co.  (Iowa) 
115  N.  W.  8;  Southern  Cotton  Oil  Co.  v.  Skipper,  125  Ga.  368,  54  S.  E.  110; 
Edington  v.  St.  Louis  &  S.  F.  R.  Co.,  204  Mo.  61,  102  S.  W.  491;  Southern 
Cotton  Oil  Co.  V.  Gladman,  1  Ga.  App.  259,  58  S.  E.  249. 

9*  Rolling  Mill  Co.  v.  Corrigan,  46  Ohio  St.  283,  20  N.  E.  466,  15  Am.  St. 
Rep.  596;  Tagg  v.  McGeorge,  155  Pa.  3G8,  26  Atl.  671,  35  Am.  St.  Rep.  889; 
Dowling  V.  Alien,  74  Mo.  13,  41  Am.  Rep.  298;  Ford  v.  Anderson,  139  Pa. 
263,  21  Atl.  18 ;  Steiler  v.  Hart,  65  Mich.  644,  32  N.  W.  875 ;  Chopin  v.  Paper 
Co.,  83  Wis.  192,  53  N.  W.  452;  Burrows  v.  Ozark  White  Lime  Co.,  82  Ark. 
343,  101  S.  W.  744 ;  Beck  v.  Standard  Cotton  Mills,  1  Ga.  App.  278,  57  S.  E. 
998;  Chambers  v.  Woodbury  Mfg.  Co.  of  Baltimore  County,  106  Md.  49G,  68 
Atl.  290,  14  L.  R.  A.  (N.  S.)  383  ;  Woodstock  Iron  Works  v.  Kline,  149  Ala.  391, 
43  South.  362.  But  where  an  infant  employe  who  had  reached  the  age  of  dis- 
cretion gave  assurances  that  he  understood  the  duties  of  his  position,  the  em- 
ployer was  not  obliged  to  give  him  any  special  instructions.  King  v.  Wood- 
stock Iron  Co.,  143  Ala.  632,  42  South.  27. 


§§  272-275)    master's  liability  for  injuries  to  servant.  517 

mature  years. ^'^  It  is  not  enough  to  inform  the  servant  gener- 
ally that  the  service  is  dangerous,  but  the  particular  perils  and 
dangers  must  be  pointed  out.^®  There  is  no  duty  to  give  informa- 
tion as  to  dangers  which  are  known  or  obvious,  and  which  he  has 
a  right  to  presume  the  servant  understands.  The  master  cannot  be 
held  liable,  however,  for  failure  to  warn  the  servant  of  every  tran- 
sitory risk,  when  the  only  thing  the  servant  does  not  know  is  the 
precise  time  when  the  danger  will  supervene.®'' 

The  master  is  not  an  insurer  of  his  servant's  safety;'®  but  in  the 
performance  of  the  above  duties  he  is  bound  only  to  use  ordinary, 
reasonable  care.®'     The  question  arises,  what  is  ordinary  care?     It 


8  5  Fox  T.  Color  Works,  84  Mich.  676.  48  N.  W.  203;  Chopin  v.  Paper  Co.,  83 
Wis.  192,  53  N.  W.  452;  Parkhurst  v.  Johnson,  50  Mich.  70,  15  N.  W.  107, 
45  Am.  Rep.  28 ;  Pennsylvania  R.  Co.  v.  Kartell,  157  F.  667,  85  C.  C.  A.  335 ; 
Coughlan  v.  Philadelphia,  B.  &  W.  R.  Co.  (Del.  Super.)  67  A.  148;  American 
Brake  Shoe  &  Foundry  Co.  v.  Toluszis,  125  111.  App.  622;  Sias  v.  Consolidated 
Lighting  Co.,  79  Vt.  224,  64  AU.  1104 ;  Vohs  v.  Shorthill  &  Co.,  130  Iowa,  538, 
107  N.  W.  417;  Wikstrom  v.  Preston  Mill  Co.,  48  Wash.  164,  93  Pac.  213; 
Swiercz  v.  Illinois  Steel  Co.,  231  111.  456,  83  N.  E.  168. 

9  6  Bailey,  Mast.  Liab.  112;  Bradburn  v.  Wabash  R.  Co.,  134  Mich.  575,  96 
N.  W.  929 ;  Addicks  v.  Christoph,  62  N.  J.  Law,  780,  43  Atl.  196,  72  Am.  St. 
Rep.  687. 

9  7  Bailey,  Mast.  Liab.  112,  118;  Smith  v.  Car  Works,  60  Mich.  506,  27  N. 
W.  662,  1  Am.  St.  Rep.  542 ;  Pittsburgh,  C.  &  St.  L.  Ry.  Co.  v.  Adams,  105  Ind. 
152,  5  N.  E.  187;  Crowley  v.  Mills,  148  Mass.  228,  19  N.  E.  344;  Fones  v. 
Phillips,  39  Ark.  17,  43  Am.  Rep.  264;  Boyd  v.  Taylor,  195  Mass.  272,  81  N. 
E.  277 ;  Eisenberg  v.  Fraim,  215  Pa.  570,  64  Atl.  793 ;  ^Tiite  v.  Owosso  Sugar 
Co.,  149  Mich.  473,  112  N.  W.  1125;  Hardy  v.  Chicago,  R.  I.  &  P.  Ry.  Co. 
(Iowa)  115  N.  W.  8 ;  Magone  v.  Portland  Mfg.  Co.  (Or.)  93  P.  450 ;  Norman  v. 
Southern  Ry.  Co.  (Tenn.)  104  S.  W.  1088. 

98  Southern  Ry.  Co.  v.  Carr,  153  Fed.  106,  82  C.  C.  A.  240;  Cudahy  Packing 
Co.  V.  Wesolowski,  75  Neb.  786,  106  N.  W.  1007 ;  Guest  v.  Edison  Illuminating 
Co.,  150  Mich.  438,  114  N.  W.  226 ;  Grace  v.  Globe  Stove  &  Range  Co.,  40  Ind. 
App.  326,  82  N.  E.  99;  Zeis  v.  St.  Louis  Brewing  Ass'n,  205  Mo.  638,  104  S. 
W.  90 ;    Vilter  Mfg.  Co.  v.  Kent  (Tex.  Civ.  App.)  105  S.  W.  525. 

99  Bailey,  Mast.  Liab.  3,  etc. ;  Chicago,  B.  &  Q.  R.  Co.  v.  Avery,  109  111. 
314;  Richardson  v.  Cooper,  88  111.  270;  Devlin  v.  Smith,  89  N.  Y.  470,  42 
Am.  Rep.  311 ;  McDonnell  v.  Oceanic  Steam  Nav.  Co.,  143  Fed.  480,  74  C.  C.  A. 
500 ;  American  Bridge  Co.  v.  Seeds,  144  Fed.  605,  75  C.  C.  A.  407,  11  L.  R.  A. 
(N.  S.)  1041;  Coughlan  v.  Philadelphia,  B.  &  W.  R.  Co.  (Del.  Super.)  67  Atl. 
148 ;  Swiercz  v.  Illinois  Steel  Co.,  231  111.  456,  83  N.  E.  168 ;  Brusseau  v.  Lower 
Brick  Co.,  133  Iowa,  245,  110  N.  W.  577;  Kremer  v.  Eagle  Mfg.  Co.,  120  Mo. 
App.  247,  90  S.  W.  726 ;  Blonski  v.  American  Enameled  Brick  &  Tile  Co.,  72 
N.  J.  Law,  409,  63  Atl.  909. 


518  MASTER  AND  SERVANT.  (Ch,  IC 

was  said  in  a  late  case,  by  the  Supreme  Court  of  the  United  States: 
"There  is  no  fixed  standard  in  the  law  by  which  a  court  is  enabled 
to  arbitrarily  say  in  every  case  what  conduct  shall  constitute  ordi- 
nary care  under  any  and  all  circumstances.  The  terms  'ordinary 
care,'  'reasonable  prudence,'  and  such  like  terms,  as  applied  to  the 
conduct  and  affairs  of  men,  have  a  relative  significance,  and  can- 
not be  arbitrarily  defined.  What  may  be  deemed  care  in  one  case 
may  under  different  surroundings  and  circumstances  be  gross  neg- 
ligence. The  policy  of  the  law  has  relegated  the  determination  of 
such  questions  to  the  jury,  under  proper  instructions  from  the  court. 
It  is  their  province  to  note  the  special  circumstances  and  surround- 
ings of  each  particular  case,  and  then  say  whether  the  conduct  of 
the  parties  in  that  case  was  such  as  should  be  expected  of  reason- 
ably prudent  men  under  a  similar  state  of  affairs."  ^  "The  rule," 
said  the  New  York  court,  "is  simple,  practical,  and  easy  of  appli- 
cation. The  question  is,  what  would  a  majority  of  men  of  com- 
mon intelligence  have  done  under  like  circumstances?  Ordinary 
care,  skill,  and  diligence  is  such  a  degree  of  care,  skill,  and  diligence 
as  men  of  ordinary  prudence,  under  similar  circumstances,  usual- 
ly employ."  ^  The  degree  of  care  must  be  proportionate  to  the  dan- 
gers of  the  employment,^  in  so  far  as  those  dangers  are  known  to 
the  master.* 

While  the  general  rule  applies  even  when  the  servant  is  a  min- 
or," yet  the  age,  intelligence,  experience,  and  capacity  of  the  serv- 


1  Grand  Trunk  Ry.  Co.  v.  Ives,  144  U.  S.  417,  12  Sup.  Ct  679,  36  L.  Ed.  485. 

2  Ernst  V.  Railroad  Ck).,  35  N.  Y.  9,  90  Am.  Dec.  761 ;  Grace  v.  Globe  Stove 
&  Range  Co.,  40  Ind.  App.  326,  82  N.  E.  99 ;  Atoka  Coal  &  Mining  Co.  v. 
Miller  (Ind.  T.)  104  S.  W.  555.  And  see  Marsh  v.  Chickering,  101  N.  Y.  400, 
5  N.  E.  56 ;  Read  v.  Morse,  34  Wis.  318 ;  Michigan  Cent.  R.  Co.  v.  Coleman,  28 
Mich.  448;  Holly  v.  Gaslight  Co.,  8  Gray  (Mass.)  131,  69  Am.  Dec.  233;  Cayzer 
V.  Taylor,  10  Gray  (Mass.)  280,  69  Am.  Dec.  317 ;  Vinton  v.  Schwab,  32  Vt. 
612. 

3  Bowring  v.  Wilmington  Malleable  Iron  Co.,  5  Peunewill  (Del.)  594,  66  Atl. 
369. 

*  Charron  v.  Union  Carbide  Co.,  151  Mich.  687,  115  N.  W.  718. 

B  Decatur  Car  Wheel  Co.  v.  Terry,  148  Ala.  674,  41  South.  839.  Under  the 
statutes  of  some  of  the  states,  regulating  the  employment  of  child  labor,  the 
employment  of  a  child  under  the  age  prescribed  is  negligence  per  se.  See 
Perry  v.  Tozer,  90  Minn.  431,  97  N.  W.  137,  101  Am.  St.  Rep.  416 ;  Piatt  v. 
Southern  Photo  Material  Co.,  4  Ga.  App.  159,  60  S.  E.  1068. 


§§  272-275)     master's  liability  for  injuries  to  servant.  519 

ant  must  be   taken   into   consideration   in   determining   whether  the 
master  has  exercised  due  care.® 

The  master's  duty  to  furnish  suitable  tools  and  appliances,  and  to 
keep  them  in  repair,  to  provide  and  maintain  a  reasonably  safe  place 
for  work,  to  promulgate  reasonable  rules,  where  they  are  required 
by  the  nature  of  the  business,  and  to  inform  servants  of  hidden 
dangers,  and  instruct  young  or  inexperienced  servants,  is  personal, 
and  he  cannot  delegate  them.  He  may  delegate  the  performance 
of  them,  but  his  responsibility  remains.'^  There  is  considerable  con- 
flict between  the  courts  in  the  application  of  this  doctrine.* 

Assumption  of  Risk  by  Servant. 

It  is  said  that,  when  a  person  enters  into  the  service  of  another, 
he  impliedly  contracts  that  he  possesses  the  ordinary  skill  and  ex- 
perience of  those  engaged  in  the  occupation  which  he  undertakes, 

e  Daniels  v.  Johnston,  39  Colo.  177,  89  Pac.  811 ;  Bare  v.  Crane  Creek  Coal 
&  Coke  Co.,  61  W.  Va.  28,  55  S.  B.  907,  8  L.  R.  A.  (N.  S.)  284,  123  Am.  St 
Rep.  966 ;  Chambers  v.  Woodbury  Mfg.  Co.,  106  Md.  496,  68  Atl.  290,  14  L.  R,  A. 
(N.  S.)  383 ;   Beck  v.  Standard  Cotton  IVIllls,  1  Ga.  App.  278,  57  S.  E.  998. 

7  Bailey,  Mast.  Liab.  328.  Selecting  tools  and  appliances.  Morton  v.  Detroit, 
B.  C.  &  A.  R.  Co.,  81  Mich.  423,  46  N.  W.  Ill ;  Moore  v.  Dublin  Cotton  Mills, 
127  Ga.  609,  56  S.  E.  839,  10  L.  R,  A.  (N.  S.)  772 ;  Mississippi  Cent.  R.  Co.  v. 
Hardy,  88  Miss.  732,  41  South.  505 ;  Kane  v.  Babcock  &  Wilcox  Co.  (N.  J.  Err. 
&  App.)  67  Atl.  1014;  Huber  v.  Whale  Creek  Iron  Works,  125  App.  Div.  184, 
109  N.  Y.  Supp.  177;  Anderson  v.  Milliken  Bros.,  123  App.  Div.  614,  108 
N.  Y.  Supp.  61;  Jemnienski  v.  Lobdell  Car  Wheel  Co.,  5  Pennewill  (Del.) 
385,  63  Atl.  935.  But  the  operation  of  appliances  can  be  delegated.  Til- 
ley  V.  Rockingham  County  Light  &  Power  Co.,  74  N.  H.  316,  67  Atl.  946. 
Inspection  of  tools  and  appliances.  Martin  v.  Wabash  R.  Co.,  142  Fed.  650, 
73  C.  O.  A.  646;  Northern  Pac.  R.  Co,  v.  Herbert,  116  U.  S.  642,  6  Sup. 
Ct.  590,  29  L.  Ed,  755;  Newton  v.  New  York  Cent  &  H.  R.  R.  Co.,  96  App. 
Div.  81,  89  N.  Y.  Supp.  23,  affirmed  1S3  N.  Y.  556,  76  N.  E.  1102.  Place  of  work. 
Combs  V.  Rountree  Const.  Co.,  205  Mo.  367,  104  S.  W.  77;  Jemnienski  v. 
Lobdell  Car  Wheel  Co.,  5  Pennewill  (Del.)  385,  63  Atl.  935 ;  Smith  v.  Dayton 
Coal  &  Iron  Co.,  115  Tenn.  543,  92  S.  W.  62,  4  L,  R.  A.  (N.  S.)  1180 ;  Antioch 
Coal  Co,  V.  Rockey,  169  Ind.  247,  82  N.  E.  76.  Employment  of  other  servants. 
Laning  v.  New  York  Cent.  R.  Co.,  49  N.  Y.  521,  10  Am.  Rep,  417.  Promulga- 
tion of  rules.  Moore  v.  Dublin  Cotton  Mills,  127  Ga.  609,  56  S.  E.  839,  10 
L.  R.  A.  (N.  S.)  772;  Gaska  v,  American  Car  &  Foundry  Co,,  127  Mo,  App. 
169,  105  S.  W.  3,  Warning  and  instructing.  Moore  v.  Dublin  Cotton  Mills, 
127  Ga.  609,  56  S.  B.  839,  10  L.  R.  A.  (N.  S.)  772 ;  Schminkey  v.  T,  M.  Sinclair 
&  Co.  (Iowa)  114  N.  W.  612. 

8  Bailey,  Mast  Liab.  128-141,  where  the  doctrine  is  discussed  at  length.  See 
post,  p.  527. 


520  MASTER  AND  SERVANT.  (Ch.  16 

that  he  will  exercise  ordinary  care  to  protect  himself  while  en- 
gaged in  that  occupation,  and  that  he  will  assume  the  risks  of  his 
employment.®  Mr.  Jaggard,  in  his  work  on  Torts,  thus  states  the 
general  rules  relating  to  the  assumption  of  the  risks  of  his  employ- 
ment by  a  servant.^"  As  he  points  out,  the  risks  which  the  serv- 
ant assumes  may  arise  (a)  from  circumstances  exclusive  of  the  risk 
of  fellow  servants,  and  may  be  either  (1)  the  ordinary  risks  of  the 
smployment;  (2)  the  extraordinary  risks  of  the  employment;  or  (b) 
from  the  negligence  of  fellow  servants. 

Same — Ordinary  Risks. 

"Excluding  the  negligence  of  fellow  servants,  a  servant  assumes 
the  ordinary  risks  of  his  employment,  with  the  instrumentalities,  in 
the  place,  and  under  the  rules  of  work  for  which  he  is  engaged, 
which  are  reasonably  necessary  and  incidental  to  it,  and  which  are 
apparent  to  ordinary  observation:  provided  (a)  he  knew  and  ap- 
preciated, or  should  have  known  and  appreciated,  the  risks  and 
dangers,  in  the  prudent  exercise  of  his  senses  and  common  sense, 
regard  being  had  to  his  age,  capacity,  and  experience;  and  provided 
(b)    the  master  has  exercised  reasonable  care  to  prevent  them."  ^^ 

»  2  Jag.  Torts,  1013  et  seq. ;    Bailey,  Mast  Llab.  142  et  seq. 

10  See  2  Jag.  Torts,  1014  et  seq. 

1 1  See  2  Jag.  Torts,  1014  et  seq. ;  Borden  v.  Daisy  Roller  Mill  Co.,  98  Wis. 
407,  74  N.  W.  91,  67  Am.  St.  Rep.  816;  Davidson  v.  Cornell,  132  N.  Y.  228, 
80  N.  E.  573 ;  Whalen  v.  Michigan  Cent.  R.  Co.,  114  Mich.  512,  72  N.  W.  323 ; 
Illinois  Steel  Co.  v.  Saylor,  129  111.  App.  73,  affirmed  226  111.  283,  80  N.  E.  783; 
Denver  &  R.  G.  R.  Co.  v.  Warring,  37  Colo.  122,  86  Pac.  305 ;  Southern  Cotton 
Oil  Co.  V.  Skipper,  125  Ga.  368,  54  S.  E.  110 ;  Rigsby  v.  Oil  Well  Supply  Co., 
115  Mo.  App.  297,  91  S.  W.  460.  Negligence  of  the  master  is  not  one  of  the 
risks  assumed  by  the  servant.  Chicago,  M.  &  St.  P.  Ry.  Co.  v.  Riley,  145  Fed. 
137,  76  C.  C.  A.  107 ;  Jensen  v.  Kyer,  101  Me.  100,  63  Atl.  389 ;  Superior  Coal 
&  Mining  Co.  v.  Kaiser,  229  111.  29,  82  N.  E.  239,  120  Am.  St.  Rep.  233.  Neither 
does  the  servant  assume  the  risk  of  a  violation  of  an  express  statutory  obliga- 
tion imposed  on  the  master  for  the  protection  of  employes.  Murphy  v.  Grand 
Rapids  Vcueer  Works,  142  Mich.  677,  106  N.  W.  211 ;  Chicago  &  A.  Ry.  Co.  v. 
Walters,  120  111.  App.  152,  attirmod  217  111.  87,  75  N.  E.  441.  While  the  rule 
as  to  assumption  of  risk  applies  to  minors  (Decatur  Car  Wheel  Co.  v.  Terry, 
148  Ala.  674,  41  South.  839),  his  age,  intelligence,  and  capacity  are  to  be  con- 
sidered (JIoss  V.  Mosley,  148  Ala.  168,  41  South.  1012;  Magone  v.  Portland 
Mfg.  Co.  [Or.]  93  Pac.  450),  and  he  will  be  lield  to  have  assumed  only  such 
>dsks  as  he  could  understand  and  appreciate  (Laverty  v.  Hambrick,  61  W. 
Va.  687,  57  S.  E.  240;  Beckwith  Organ  Co.  v.  Malone,  106  S.  W.  809,  32  Ky. 
Law  Rep.  596). 


§§  272-275)     master's  liability  for  injuries  to  servant.  521 

If  a  piece  of  machinery  is  obviously  dangerous,  ordinarily,  one  who 
undertakes  to  work  at  it  assumes  the  risk  of  injuries  therefrom. ^^ 
And,  generally,  if  he  works  with  machinery  or  tools  which  he 
knows,  or  should  reasonably  know,  to  be  defective,  and  therefore 
dangerous,  he  assumes  the  risk.^'  The  rule  is  the  same  where  a 
servant  works  in  a  place  which  is  obviously  dangerous,  or  which  he 
knows  to  be  dangerous.^* 


12  Anderson  v.  Lumber  Co.,  47  Minn.  128,  49  N.  W.  664;  Crowley  v.  Pacific 
Mills,  148  Mass.  228,  19  N.  E.  344 ;  Hickey  v.  Taaffe,  105  N.  Y.  26,  12  N.  E. 
286 ;  Prentiss  v.  Manufacturing  Co.,  63  Mich.  478,  30  N.  W.  109 ;  Chicago,  B. 
&  Q.  R.  Co.  V.  Merckes,  36  111.  App.  19.5 ;  United  States  Rolling  Stock  Co.  v. 
Chadwick,  35  111.  App.  474;  O'Keefe  v.  Thorn  (Pa.)  16  Atl.  737;  Townsend 
V.  Langles  (C.  C.)  41  Fed.  919;  McCormick  Harvesting  Mach.  Co.  v.  Zakzew- 
ski,  220  111.  522,  77  N.  E.  147,  4  L.  R.  A.  (N.  S.)  848,  reversing  121  111.  App. 
26 ;  Moran  v.  Mulligan,  110  App.  Div.  208,  97  N.  Y.  Supp.  7 ;  Rigsby  v.  Oil 
Well  Supply  Co.,  115  Mo.  App.  297,  91  S.  W.  460.  Effect  of  statutes  providing 
for  guarding  machinery  to  modify  the  rule  as  to  assumption  of  risk,  see 
Inland  Steel  Co.  v.  Kachwinski,  151  Fed.  219,  80  C.  C.  A.  571 ;  Southern  Pac. 
Co.  V.  Allen  (Tex.  Civ.  App.)  106  S.  W.  441 ;  Johnson  v.  Far  "West  Lumber  Co., 
47  Wash.  492,  92  Pac.  274;  Rector  v.  Bryant  Lumber  &  Shingle  Mill  Co.,  41 
Wash.  556,  84  Pac.  7, 

18  Michael  v.  Stanley,  75  Md.  464,  23  Atl.  1094;  Rietman  v.  Stolte,  120  Ind. 
314,  22  N.  E.  304;  Way  v.  Railway  Co.,  40  Iowa,  341;  Anderson  v.  Railroad 
Co.,  39  Minn.  523,  41  N.  W.  104 ;  Shaw  v.  Sheldon,  103  N.  Y.  607,  9  N.  E.  183 ; 
American  Smelting  &  Refining  Co.  v.  McGee,  157  Fed.  69,  84  C.  C.  A.  573; 
Kath  V.  East  St.  Louis  &  S.  Ry.  Co.,  232  111.  126,  83  N.  E.  533,  15  L.  R.  A. 
(N.  S.)  1109 ;  Banks  v.  Schofield's  Sons  Co.,  126  Ga.  667,  55  S.  E.  939 ;  United 
States  Wind  Engine  &  Pump  Co.  v.  Butcher,  223  111.  638,  79  N.  E.  304,  114 
Am.  St.  Rep.  330,  affirming  126  111.  App.  302. 

1*2  Jag.  Torts,  1017;  Bailey,  Mast.  Liab.  142  et  seq. ;  McGrath  r.  Rail- 
way Co.,  9  C.  C.  A.  133,  60  Fed.  £555;  Ragon  v.  Railway  Co.,  97  Mich.  265, 
56  N.  W.  612,  37  Am.  St.  Rep.  336;  Gibson  v.  Railway  Co.,  63  N.  Y.  449,  20 
Am.  Rep.  552 ;  Feely  v.  Cordage  Co.,  161  Mass.  426,  37  N.  E.  368 ;  Coal  Creek 
Min.  Co.  V.  Davis,  90  Tenn.  711,  18  S.  W.  387 ;  Norfolk  &  W.  Ry.  Co.  v.  Gess- 
wiue,  144  Fed.  56,  75  C.  C.  A.  214 ;  Welch  v.  Carlucci  Stone  Co.,  215  Pa.  34, 
64  Atl.  392 ;  Knorpp  v.  Wagner,  195  Mo.  637,  93  S.  W.  961 ;  Schillinger  Bros. 
Co.  V.  Smith,  225  111.  74,  80  N.  E.  65 ;  Rigsby  v.  Oil  Well  Supply  Co.,  115  Mo. 
App.  297,  91  S.  W.  460.  While  the  employ^  is  bound  to  take  notice  of  obvious 
defects  in  the  place  where  he  is  working,  he  is  not  required  to  make  an  ex- 
amination for  hidden  defects.  Superior  Coal  &  Mining  Co.  v.  Kaiser,  229  111. 
29,  82  N.  E.  239,  120  Am.  St.  Rep.  233.  But  even  when  the  servant  is  en- 
gaged in  making  safe  a  known  dangerous  place  he  does  not  assume  the  risk 
of  the  master's  negligence.  Jacobson  v.  Hobart  Iron  Co.,  103  Minn.  319,  114  N. 
W.  951. 


522  MASTER  AND  SERVANT.  (Ch.  16 

Same — Extraordinary  Risks. 

"The  servant  cannot  recover  from  his  employer  for  damages  con- 
sequent upon  extraordinary  risks  which  he  has  knowingly  assum- 
ed." ^"  A  servant  does  not  assume  extraordinary  risks  unless  he 
has  actual  or  constructive  knowledge  of  the  danger.^'  But  if  he 
has  such  knowledge,  and  voluntarily  undertakes  the  work,  the  risk 
is  assumed.^^ 

Same — Exceptions  to  the  Rule. 

The  principles  under  which  a  servant  is  held  to  assume  the  risks 
of  the  employment  do  not  apply  in  the  following  cases :  ^*  (a) 
Where,  though  he  may  know  of  the  defect  or  danger,  he  does  not 
necessarily,  and  should  not  reasonably,  know  of  or  appreciate  the 
consequent  risk.^*  (b)  Where,  without  proper  notice  of  increased 
risk,  he  is  put  to  a  service  outside  of,  and  more  dangerous  than, 
the  employment  for  which  he  was  engaged.^"     (c)  Where  the  master 


IB  2  Jag.  Torts,  1019,  1020,  and  cases  there  cited, 

laRichlands  Iron  Co.  v.  Elkins,  90  Va.  249,  17  S.  B.  890;  Schmlnkey  v. 
T,  M.  Sinclair  &  Co.  (Iowa)  114  N.  W.  612;  Place  v.  Grand  Trunk  R.  Co., 
80  Vt.  196,  67  Atl.  545. 

i7Gofl  V.  Railway  Co.,  86  Wis.  237,  50  N.  W.  465;  McDuffee's  Adm'x  v. 
Boston  &  M.  R.  R.,  81  Vt.  52,  69  Atl.  124 ;  Sullivan  v.  Railroad  Co.,  161  Mass. 
125,  36  N.  E.  751 ;  Kelley  v.  Railway  Co.,  35  Minn.  490,  29  N.  W.  173 ;  Texas 
&  P.  Ry.  Co.  V.  Rogers,  6  C.  C.  A.  403,  57  Fed.  378 ;  Wheeler  v.  Berry,  95  Mich. 
250,  54  N.  W.  876 ;   Smith  v.  Railroad  Co.,  42  Minn.  87,  43  N.  W.  968. 

18  The  following  statements  are  taken  In  substance  from  2  Jag.  Torts,  1021. 

19  Coombs  V.  Cordage  Co.,  102  Mass.  572,  3  Am.  Rep.  506;  Choctaw,  O.  & 
G.  R.  Co.  V.  Jones,  77  Ark.  367,  92  S.  W.  244,  4  L.  R.  A.  (N.  S.)  837 ;  Mellor 
V.  Manufacturing  Co.,  150  Mass.  362,  23  N.  E.  100,  5  L.  R.  A.  792 ;  Steen  v. 
Railroad  Co.,  37  Minn.  310,  34  N.  W.  113 ;  Davidson  v.  Cornell,  132  N.  Y.  228, 
30  N.  E.  573. 

2  0  Consolidated  Case  Co.  of  St.  Louis  v.  HaennI,  48  111.  App.  115,  affirmed 
146  111.  614,  35  N.  E.  162 ;  Union  Pac.  R.  Co.  v.  Fort,  17  Wall.  553,  21  L.  Ed. 
739 ;  American  Brake  Shoe  &  Foundry  Co.  v.  Hank,  129  111.  App.  188 ;  Oolitic 
Stone  Co.  v.  Ridge  (Ind.  App.)  80  N.  E.  441;  Jacksonville  Electric  Co.  v. 
Sloan,  52  Fla.  257,  42  South.  516.  But  "if  a  servant  of  full  age  and  ordinary 
intelligence,  upon  being  required  by  his  master  to  perform  other  duties  more 
dangerous  and  complicated  than  those  embraced  in  his  original  hiring,  un- 
dertakes such  duties  knowing  their  dangerous  character,  although  unwilling- 
ly, and  from  fear  of  losing  his  employment,  and  he  is  injured,  he  cannot 
maintain  an  action  for  the  injury."  Leary  v.  Railroad  Co.,  139  Mass.  580,  2 
N.  E.  115,  52  Am.  Rep.  733.  He  assumes  the  risk  if  he  voluntarily  engages 
In  a  dangerous  work  outside  the  scope  of  his  employment.     National  Fire 


§§  272-275)     master's  liability  for  injuries  to  servant.  523 

has  promised  to  remove  the  peril, ^^  unless  the  danger  is  so  immedi- 
ate and  imminent  that  an  ordinarily  prudent  man  would  not  con- 
tinue in  the  service.*^  (d)  Even  in  the  latter  case,  the  risk  will 
not  be  assumed   if  the   duty  to   continue  in  the  dangerous   service 


Proofing  Co.  v.  Andrews,  158  Fed.  294.  85  C.  C.  A.  526;  Pittsburgh,  C.  &  St 
L.  Ry.  Co.  V.  Adams,  105  Ind.  151,  5  N.  E.  187;  Prentiss  v,  Kent  Furniture 
Mfg.  Co.,  63  Micli.  478,  30  N.  W.  109.  So,  too,  if  tie  pursues  a  dangerous 
mettiod  wtien  a  safe  one  is  provided.  Suttle  v.  Choctaw,  O.  &  G.  R.  Co.,  144 
Fed.  668,  75  C.  C.  A.  470;  Perry  v.  Michigan  Alliali  Co.,  150  Mich.  537,  114 
N.  W.  315.  Even  the  specific  command  of  his  superior  to  pursue  a  danger- 
ous method  will  not  wholly  excuse  him.  Chicago  Great  Western  Ry.  Co.  v. 
Crotty,  141  Fed.  913,  73  C.  C.  A.  147,  4  L.  R.  A.  (N.  S.)  832.  But  it  may  be 
taken  into  consideration  and  weight  as  one  of  the  attendant  circumstances. 
Jensen  v.  Kyer,  101  Me.  106,  63  Atl.  389.  If  the  superior  assured  him  there 
was  no  danger,  the  exception  will  apply.  American  Brake  Shoe  &  Foundry 
Co.  V.  Jankus,  121  111.  App.  267 ;  Bush  v.  West  Yellow  Pine  Co.,  2  Ga.  App. 
295,  58  S.  E.  529. 

21  Hough  V.  Railway  Co.,  100  U.  S.  213,  25  L.  Ed.  612;  Chicago  Drop  Forge 
&  Foundry  Co.  v.  Van  Dam,  149  111.  337,  36  N.  E.  1024 ;  Greene  v.  Railway 
Co.,  31  Minn.  248,  17  N.  W.  378,  47  Am.  Rep.  785.  There  must  be  a  clear 
promise  to  repair.  A  complaint  and  an  acknowledgment  of  the  defect  are 
not  enough.  Breig  v.  Railway  Co.,  98  Mich.  222,  57  N.  W,  118 ;  Chesapeake, 
O.  &  S.  W.  R.  Co.  V.  McDowell,  24  S.  W.  607,  16  Ky.  Law  Rep.  1 ;  Wilson  v. 
Railroad  Co.,  37  Minn.  320,  33  N.  W.  908,  5  Am.  St.  Rep.  851 ;  Mahan  v.  Clee, 
87  Mich.  161,  49  N.  W.  556;  Viou  v.  Brooks-Scanlon  Lumber  Co.,  99  Minn. 
97,  108  N.  W.  891 ;  Monarch  Mining  &  Development  Co.  v.  De  Voe,  30  Colo. 
270,  85  Pac.  633.  But  see  Kistner  v.  American  Steel  Foundries,  233  111.  35, 
84  N.  E.  44,  when  it  was  held  that  the  rule  which  exempts  an  employ^  from 
assuming  the  risk  of  injury  because  of  defective  machinery,  where  a  promise 
to  repair  is  made,  applies  only  where  particular  skill  and  experience  are 
necessary  to  appreciate  the  defect  and  the  danger,  or  where  he  can  have  but 
little  knowledge  of  the  machinery,  and  does  not  apply  where  he  is  engaged 
In  ordinary  labor  or  the  tools  used  are  of  simple  construction  with  which  he  is 
as  familiar  as  the  master.  The  exemption  of  the  servant  continues  only  for  a 
reasonable  time,  however.  Utah  Consol.  Min.  Co.  v.  Paxton,  150  Fed.  114, 
80  C.  C.  A.  68;  Louisville  Belt  &  Iron  Co.  v.  Hart,  122  Ky.  731,  92  S.  W. 
951 ;  Western  Coal  &  Mining  Co.  v.  Burns,  84  Ark.  74,  104  S.  W.  535.  And 
if  he  continues  in  the  employment  after  a  breach  of  the  employer's  promise 
to  repair  he  reassumes  the  risk.  Andrecsik  v.  New  Jersey  Tube  Co.,  73  N.  J. 
Law,  664,  63  Atl.  719,  4  L.  R.  A.  (N.  S.)  913. 

2  2  Greene  v.  Railway  Co.,  31  Minn.  248,  17  N.  W.  378,  47  Am.  Rep.  785; 
Russell  V.  Tillotson,  140  Mass.  201,  4  N.  E.  231;  Crosby  v.  Cuba  R.  Co.  (C. 
C.)  158  Fed.  144;  Utah  Consol.  Min.  Co.  v.  Paxton,  150  Fed.  114,  80  C.  C. 
A.  68 ;   Leeson  v.  Sawmill  Phoenix,  41  Wash.  423,  83  Pac.  891. 


524  MASTER  AND  SERVANT.  (Ch.  16 

is  required  or  justified  by  some  emergency  approved  by  law.^'   (e) 
Where  the  servant  does  not  voluntarily  expose  himself  to  the  peril.^* 

Same — Negligence  of  Fellow  Servants. 

Among  the  ordinary  risks  of  the  service  which  are  assumed  by  a 
servant,  as  between  himself  and  his  master,  is  the  risk  of  negligence 
upon  the  part  of  a  fellow  servant.^ "^  The  leading  case  in  this  coun- 
try is  Farwell  v.  Boston  &  Worcester  Railroad  Corp.,^'  decided  in 
the  Supreme  Court  of  Massachusetts  in  1842,  in  which  it  was  held 
that  a  master  is  not  liable  to  his  servant  for  an  injury  due  to  the  neg- 
ligence of  a  fellow  servant  engaged  in  the  same  general  employment, 
where  he  has  used  due  diligence  in  the  selection  of  such  fellow  serv- 
ant, and  has  furnished  to  his  employe  suitable  means  for  carrying 
on  the  business  in  which  they  are  engaged.^* 

23  2  Jag.  Torts,  1027;  Lalor  v.  Railway  Co.,  52  111.  401,  4  Am.  Rep.  616; 
Moore  v.  Railway  Co.,  85  Mo.  588;  Strong  v.  Railway  Co.,  94  Iowa,  380,  62 
N.  W.  799. 

24  2  Jag.  Torts,  1028.  As  where  a  seaman  obeys  the  orders  of  his  superior 
officer,  being  required  by  statute  to  do  so,  Eldridge  v.  Steamship  Co.,  134  N. 
Y.  187,  32  N.  E.  66 ;  or  where  a  convict  worlss  in  a  dangerous  place,  under 
control  and  orders  of  a  guard,  Chattahoochee  Brick  Co.  v.  Braswell,  92  Ga. 
631,  18  S.  E.  1015 ;  or  where  a  servant,  by  the  wrong  of  the  master,  is  placed 
in  a  position  of  imminent  peril,  and  necessarily  adopts  a  dangerous  means  of 
escaping  therefrom,  Louisville  &  N.  R.  Co.  v.  Shi  veil's  Adm'r,  18  S.  W.  944, 
13  Ky.  Law  Rep.  902. 

2  5  Westiughouse,  Church,  Kerr  &  Co.  v.  Callaghan,  155  Fed.  397,  83  C.  C. 
A.  669 ;  King  v.  Ford,  121  App.  Div.  404,  106  N.  Y.  Supp.  50 ;  Haskell  &  Bar- 
ker Car  Co.  V.  Prezezdziankowski  (Ind.)  83  N.  E.  626,  14  L.  R,  A.  (N.  S.)  972; 
Pagan  v.  Southern  Ry.,  78  S.  C.  413,  59  S.  E.  32 ;  Grandin  v.  Southern  Pac. 
Co.,  30  Utah,  360,  85  Pac.  357.  He  does  not  assume  the  risk  arising  from  the 
carelessness  of  an  incompetent  servant  of  whose  incap;ibility  he  is  ignorant. 
Baldwin  v.  American  Writing  Paper  Co.,  196  Mass.  402,  82  N.  E.  1.  Nor  of 
negligence  of  such  nature  that  it  could  not  have  been  anticipated.  Vindicator 
Consol.  Gold  Min.  Co.  v.  Firstbrook,  36  Colo.  498,  86  Pac.  313.  Under  stat- 
utes in  some  states  the  risk  of  negligence  of  a  fellow  servant  Is  not  assum- 
ed. Phinney  v.  Illinois  Cent.  R.  Co.,  122  Iowa,  488,  98  N.  W.  358;  Rhodes  v. 
Des  Moines,  I.  F.  &  N.  Ry.  Co.  (Iowa)  115  N.  W^  503 ;  Malcom  v.  Fuller,  152 
Mass.  100,  25  N.  E.  83. 

2  0  4  Mete.  49,  38  Am.  Dec.  339. 

27  See,  generally,  Johnson  v.  Boston  &  M.  R.  R.,  78  Vt.  344,  62  Atl.  1021, 
4  L.  R.  A.  (N.  S.)  856 ;  Lapre  v.  Woronoco  St.  Ry.  Co.,  196  Mass.  363,  82  N. 
E.  9;  Beleal  v.  Northern  Pac.  Ry.  Co.,  15  N.  D.  318,  108  N.  W.  33;  Fallon 
V.  Mertz,  110  App.  Div.  755,  97  N.  Y.  Supp.  417;  Louisville  &  N.  R.  Co.  v. 
Wyatt's  Adm'r,  93  S.  W.  001,  29  Ky.  Law  Rep.  437;  Chenall  v.  Palmer  Brick 
Co.,  125  Ga.  671,  54  S.  E.  603 ;   McDonald  v.  California  Timber  Co.  (Cal.  App.) 


i 


§§  272-275)     master's  liability  for  injuries  to  servant.  525 

When  we  seek  for  a  rule  which  will  determine  when  the  rela- 
tionship of  fellow  servants  exists,  so  as  to  exempt  the  master  from 
liability,  we  meet  with  a  hopeless  conflict  in  the  decisions.  It  is 
impossible  to  state  any  rule  that  will  apply  in  all  the  states,  or  even 
in  any  considerable  number  of  then).  There  is  no  question  in  the 
law  of  master  and  servant  upon  which  there  is  greater  conflict  and 
confusion  in  the  cases.  Not  even  are  the  decisions  of  the  same  court 
always  consistent. 

In  order  that  the  rule  may  apply,  it  is  necessary  that  the  serv- 
ants shall  have  a  common  master.^ ^  It  is  not  enough  for  the  employ- 
ment to  be  the  same,  if  the  masters  are  different.^®     If  a  master 


94  Pac.  376 ;  Atoka  Coal  &  Mining  Co.  v.  Miller  (Ind.  T.)  104  S.  W.  555 ;  Mc- 
Mahon  v.  Bangs,  5  Pennewill  (Del.)  178,  62  Atl.  1098.  If,  however,  the  in- 
jury is  due  to  the  concurrent  negligence  of  the  master  and  a  fellow  servant, 
the  master  is  not  relieved  from  liability.  Haskell  &  Barker  Car  Co.  v.  Pre- 
zezdziankowski  (Ind.)  83  N.  E.  626,  14  L.  R.  A.  (N.  S.)  972 ;  Trickey  v.  Clark 
(Or.)  93  Pac.  457 ;  Gordon  v.  Chicago,  R.  I.  &  P.  Ry.  Co.,  129  Iowa,  747,  106 
N.  W.  177 ;  Moore  v.  St.  Louis  Transit  Co.,  193  Mo.  411,  91  S.  W.  1060 ;  Root 
V.  Kansas  City  Southern  Ry.  Co.,  195  Mo.  348,  92  S.  W.  621,  6  L.  R.  A.  (N. 
S.)  212 ;  Conine  v.  Olympia  Logging  Co.,  42  Wash.  50,  84  Pac.  407 ;  Howard 
V.  Beldenville  Lumber  Co.,  129  Wis.  98,  108  N.  W.  48;  Ryan  v.  Delaware  & 
Hudson  Co.,  114  App.  Div.  268,  99  N.  Y.  Supp.  794.  This  exception  applies, 
also,  when  the  negligence  of  the  master  is  that  of  a  vice  principal.  Roebling 
Const.  Co.  V.  Thompson,  229  111.  42,  82  N.  E.  196;  Chicago  &  E.  I.  R.  Co.  v. 
Kimmel,  221  111.  547,  77  N.  E.  936. 

2  8  Westiughouse,  Church,  Kerr  &  Co.  v.  Callaghau,  155  Fed.  397,  83  C.  C. 
A.  669;  Missouri,  K.  &  T.  Ry.  Co.  v.  Hendricks  (Tex.  Civ.  App.)  108  S.  W. 
745;  Fisher  v.  Minegeaux,  73  N.  J.  Law,  424;  63  Atl.  902.  When  the  in- 
jured servant  at  the  time  of  the  injury  occupied  the  position  of  a  mere 
licensee  in  a  vehicle  driven  by  another  servant  of  the  same  master,  the  re- 
lation of  fellow  servant  did  not  exist.  Pigeon  v.  Lane,  80  Conn.  237,  67  Atl. 
886. 

29  2  Jag.  Torts,  1033,  1034;  Sullivan  v.  Railroad  Co.,  112  N.  Y.  643,  20  N. 
E.  569,  8  Am.  St.  Rep.  793;  Kelly  v.  Tyra,  103  Minn.  176,  114  N.  W.  750; 
Drake  v.  John  N.  Robins  Co.,  123  App.  Div.  537,  108  N.  Y.  Supp.  457 ;  John- 
son V.  Spear,  76  Mich.  139,  42  N.  W.  1092,  15  Am.  St.  Rep.  298;  Kelly  v. 
Johnson,  128  Mass.  530,  35  Am.  Rep.  398;  Phillips  v.  Railway  Co.,  64  Wis. 
475,  25  N.  W.  544.  The  rule,  for  instance,  does  not  apply  to  servants  of  differ- 
ent masters,  working  on  the  same  building.  Morgan  v.  Smith,  159  Mass.  570, 
35  N.  E.  101;  McDouough  v.  Pelham  Hod  Elevating  Co.,  Ill  App.  Div.  585, 
98  N.  Y.  Supp.  90;  Burrill  v.  Eddy,  160  Mass.  198,  35  N.  E.  483.  So,  serv- 
ants of  difCereut  railroad  companies,  operating  connecting  lines,  are  not  with 
In  the  rule.  Sullivan  v.  Railroad  Co.,  112  N.  Y.  043,  20  N.  B.  509,  8  Am.  St. 
Rep.  793 ;  Jennings  v.  Philadelphia,  B.  &  W.  Ry.  CO.,  29  App.  D.  a  219 ;  2  Jag. 


526 


MASTER   AND   SERVANT. 


(Ch.  16 


lends  or  hires  his  servant  to  another  for  a  particular  employment, 
he  becomes,  as  to  that  employment,  a  servant  of  the  person  to  whom 
he  is  lent  or  hired,  and  a  fellow  servant  of  the  servants  of  such 
person.^" 

A  person  who,  without  any.  employment,  voluntarily  undertakes 
to  perform  services  for  another,  or  to  assist  the  servants  of  an- 
other in  the  service  of  the  master,  either  at  the  request  or  without 
the  request  of  such  servants,  who  have  no  authority  to  employ 
other  servants,  stands  in  the  relation  of  a  servant,  for  the  time 
being,  and  is  to  be  regarded  as  assuming  all  the  risks  incident  to 
the  business,  including  the  risk  of  injuries  from  the  negligence  of 
fellow  servants. ^^ 

"The  English  courts  determine  the  relationship  of  fellow  serv- 
ants by  the  test  of  common  employment.  *  *  *  The  American 
cases  incline  to  adopt,  as  the  test  of  whether  the  plaintiff  and 
another  servant  are  fellow  servants  of  the  same  master,  the  doc- 
trine of  vice  principal.  A  vice  principal,  as  distinguished  from  a 
fellow  servant,  is  one  to  whom  the  master  has  delegated  some 
absolute  duty  owed  by  the  master  to  his  servants.  For  the  neg- 
ligence of  such  vice  principal— at  least,  so  long  as  he  is  engaged 
in  the  performance  of  such  duty — the  master  is  responsible  to  other 


Torts,  1035,  and  cases  there  cited.  So,  also,  the  servants  of  a  man  are  not  the 
fellow  servants  of  the  servants  of  an  Independent  contractor  employed  by 
him  on  a  piece  of  work._  Coughtry  v.  Woolen  Co.,  5G  N.  Y.  124,  15  Am.  Rep. 
387;  Lake  Superior  Iron  Ck).  v.  Erickson,  39  Mich.  492,  33  Am.  Rep.  423; 
Goodfellow  V.  Railroad  Co.,  106  Mass.  4G1 ;  2  Jag.  Torts,  1036,  and  cases 
cited. 

so  Hasty  v.  Sears,  157  Mass.  123,  31  N.  E.  759,  34  Am.  St.  Rep.  267;  Cregan 
V.  JIarston,  126  N.  Y.  573,  27  N.  E.  952,  22  Am.  St.  Rep.  854 ;  Illinois  Cent. 
R.  Co.  V.  Cox,  21  111.  20,  71  Am.  Dec.  298. 

SI  There  are  some  cases  against  this  doctrine,  or  apparently  so.  It  is  sup- 
ported, however,  by  the  great  weight  of  authority.  Street  Ry.  Co.  v.  Bolton, 
43  Ohio  St.  224,  1  N.  E.  333,  54  Am.  Rep.  803;  Jackson  v.  Southern  Ry.,  73 
S.  C.  557,  54  S.  E.  231 ;  Mayton  v.  Railway  Co.,  03  Tex.  77,  51  Am.  Rep.  637 ; 
New  Orleans,  J.  &  G.  N.  R.  Co.  v.  Harrison,  48  Miss.  112,  12  Am.  Rep.  356; 
Flower  v.  Railroad  Co.,  69  Pa.  210,  8  Am.  Rep.  251 ;  Osborne  v.  Railroad  Co., 
68  Me.  49,  28  Am.  Rep.  16.  This  doctrine  applies  to  volunteers  only.  It  does 
not  apply  to  passengers  or  shippers,  or  their  servants,  assisting  the  employes 
of  a  carrier  to  remove  impediments  to  travel,  or  to  expedite  delivery  of  goods. 
Wright  V.  London  &  N.  W.  R.  Co.,  1  Q.  B.  Div.  252 ;  Street  Ry.  Co.  v.  Bolton, 
43  Ohio  St.  224,  1  N.  E.  333,  54  Am.  Rep.  803;  Eason  v.  Railway  Co.,  65 
Tex.  577,  57  Am.  Rep.  606.     But  see  Potter  v.  Faulkner,  1  Best  &  S.  800. 


§§  272-275)     master's  liability  for  injuries  to  servant.  527 

servants."  "  It  is  the  well-established  rule  that  the  duty  which  a 
master  owes  his  servant  to  furnish  safe  premises  and  appliances, 
and  competent  fellow  servants,  and  to  promulgate  proper  rules, 
is  a  personal  duty,  of  which  he  cannot  relieve  himself  by  delegat- 
ing it  to  an  agent  or  employe. ^^  If  he  intrusts  this  duty  to  a  servant, 
he  makes  him,  to  that  extent,  a  vice  principal,  and  not  a  fellow 
servant,  of  the  other  servants. ^^  If  the  servant  intrusted  with  such 
duties  is  negligent  in  the  performance  of  them,  and  injury  there- 
by results  to  another  servant,  the  negligence  is  that  of  the  master, 
and  he  is  liable."     Thus  far  the  courts  in  this  country  agree.     But 


82  2  Jag.  Torts,  1036,  1037.  And  see  Bailey,  Mast.  Liab.  220-393,  where 
the  question  is  considered  at  length,  and  the  doctrine  in  each  state  set  forth. 

83  Parry  Mfg.  Co.  v.  Eaton  (Ind.  App.)  83  N.  E.  510;  Harper  v.  lola  Port- 
land Cement  Co.,  76  Kan.  612,  93  Pac.  179;  Kiley  v.  Rutland  R.  Co.,  80  Vt. 
530,  68  Atl.  713 ;  Koerner  v.  St.  Louis  Car  Co.,  209  Mo.  141,  107  S.  W.  481 ; 
National  Fire  Proofing  Co.  v.  Andrews,  158  Fed.  294,  85  C.  C.  A.  526 ;  Gussart 
V.  Greenleaf  Stone  Co.,  133  Wis.  418,  114  N.  W.  799 ;  Kane  v.  Babcock  &  Wil- 
cox Co.  (N.  J.  Err.  &  App.)  67  Atl.  1014 ;  Schminkey  v.  T.  M.  Sinclair  &  Co. 
(Iowa)  114  N.  W.  612;  Hatch  v.  Pike  Mfg.  Co.,  73  N.  H.  521,  63  Atl.  306; 
Missouri,  K.  &  T.  Ry.  Co.  v.  Wise  (Tex.  Civ.  App.)  106  S.  W.  405 ;  El  Paso 
&  S.  W.  Ry.  Co.  V.  Smith  (Tex.  Civ.  App.)  108  S.  W.  988.    See,  also,  ante,  p. . 

3  4  Harper  v.  lola  Portland  Cement  Co.,  76  Kan.  612,  93  Pac.  179;  Bailey 
V.  Swallow,  98  Minn.  104,  107  N.  W.  727;  Koerner  v.  St.  Louis  Car  Co.,  209 
Mo.  141,  107  S.  W.  481 ;  Sandusky  Portland  Cement  Co.  v.  Rice,  40  Ind.  App. 
726,  82  N.  E.  1007;  Donk  Bros.  Coal  &  Coke  Co.  v.  Thil,  128  111.  App.  240, 
affirmed  228  111.  233,  81  N.  E.  857;  Illinois  Steel  Co.  v.  Ziemkowski,  220  111. 
324,  77  N.  E.  190,  4  L.  R.  A.  (N.  S.)  1101 ;  Cleveland,  C,  C.  &  St.  L.  Ry.  Co. 
V.  Austin.  127  111.  App.  281;  Lammi  v.  Milford  Pink  Granite  Quarries,  190 
Mass.  330,  82  N.  E.  20;  El  Paso  &  S.  W.  Ry.  Co.  v.  Smith  (Tex.  Civ.  App.) 
108  S.  W.  988;  Missouri,  K.  &  T.  R.  Co.  v.  Wise  (Tex.  Civ.  App.)  106  S.  W. 
465 ;   Clegg  v.  Seaboard  Steel  Casting  Co.,  34  Pa,  Super.  Ct.  63. 

8B  Donahue  v.  C.  H.  Buck  &  Co.,  197  Mass.  550,  83  N.  E.  1090;  Lammi  v. 
Milford  Pink  Granite  Quarries,  196  Mass.  336,  82  N.  E.  26;  Byrne  v.  Lcarn- 
ard,  191  Mass.  269,  77  N.  E.  310 ;  Sampson  v.  Holbrook,  192  Mass.  421,  78  N. 
E.  127;  Parry  Mfg.  Co.  v.  Eaton  (Ind.  App.)  83  N.  E.  510;  Sandusky  Port- 
land Cement  Co.  v.  Rice,  40  Ind.  App.  720,  82  N.  E.  1007 ;  Harper  v.  lola  Port- 
land Cement  Co.,  70  Kan.  012,  93  Pac.  179;  Southern  R.  Co.  v.  Rutledge,  4 
Ga,  App.  80,  00  S.  E.  1011 ;  Ongaro  v.  Twohy,  49  Wash.  93,  94  Pac.  916 ;  Stech- 
er  Cooperage  Works  v.  Steadman,  78  Ark.  381,  94  S.  W.  41;  Archer-Foster 
Const.  Co.  V.  Vaughn,  79  Ark.  20,  94  S.  W.  717.  But  the  master  is  not  re- 
sponsible for  an  error  in  judgment  or  even  negligence  on  the  part  of  the 
servant  in  carrying  out  details  which  the  master  could  delegate.  Vogel  v. 
American  Bridge  Co.,  ISO  N.  T.  373,  73  N.  E.  1,  70  L.  R.  A.  725 ;  Agresta  v. 
Stevenson,  112  App.  Div.  307,  98  N.  Y.  Suiip.  594. 


528  MASTER  AND  SERVANT,  (Ch.  16 

when  we  go  a  step  further  we  meet  with  a  conflict  in  the  decisions 
of  the  various  courts. 

In  New  York  this  doctrine  is  made  the  test  of  the  relation  of 
fellow  servant,  and  the  rank  or  grade  of  the  negligent  servant  is 
immaterial.  It  is  said  in  a  leading  New  York  case:  "The  liability 
of  the  master  does  not  depend  upon  the  grade  or  rank  of  the  em- 
ploye whose  negligence  causes  the  injury.  A  superintendent  of  a 
factory,  although  having  power  to  employ  men,  or  represent  the 
master  in  other  respects,  is,  in  the  management  of  the  machinery, 
a  fellow  servant  of  the  other  operatives.  On  the  same  principle, 
however  low  the  grade  or  rank  of  the  employe,  the  master  is  lia- 
ble for  injuries  caused  by  him  to  another  servant,  if  they  result 
from  the  omission  of  some  duty  of  the  master,  which  he  has  con- 
fided to  such  inferior  employe.  *  ♦  *  The  liability  of  the  master 
is  thus  made  to  depend  upon  the  character  of  the  act  in  the  per- 
formance of  which  the  injury  arises,  without  regard  to  the  rank  of 
the  employe  performing  it.  If  it  is  one  pertaining  to  the  duty  the 
master  owes  to  his  servants,  he  is  responsible  to  them  for  the  man- 
ner of  its  performance.  The  converse  of  the  proposition  necessarily 
follows.  If  the  act  is  one  which  pertains  only  to  the  duty  of  an 
operative,  the  employe  performing  it  is  a  mere  servant,  and  the 
master,  although  liable  to  strangers,  is  not  liable  to  a  fellow  serv- 
ant,  for  its   improper  performance."  ^" 

«e  Crispin  v.  Babbitt,  81  N.  Y.  516,  37  Am.  Rep.  521.  And  see  McCosker  v. 
Railroad  Co.,  84  N.  Y.  77;  Slater  v.  Jewett,  85  N.  Y.  74,  39  Am.  Rep.  627; 
Brick  V.  Railroad  Co.,  98  N.  Y.  211;  Finnigan  v.  New  York  Contracting  Co., 
122  App.  Div.  712,  107  N.  Y.  Supp.  855;  Gallagher  v,  Newman,  190  N.  Y.  444, 
83  N.  E.  480,  16  L.  R,  A.  (N.  S.)  146 ;  Droge  v.  John  N.  Robins  Co.,  123  App. 
Div.  537,  108  N.  Y.  Supp.  457;  Quinlan  v.  Lackawanna  Steel  Co.,  191  N.  Y. 
329,  84  N.  E.  73;  Ozogar  v.  Pierce,  Butler  &  Pierce  Mfg.  Co.,  55  Misc.  Rep. 
579,  105  N.  Y,  Supp.  1087;  Castner  Electrolytic  Alkali  Co.  v.  Davies,  154 
Fed.  938,  83  C.  C.  A.  510.  See,  also,  Chicago,  I.  &  L.  Ry.  Co.  v.  Barker,  169 
lud.  670,  83  N.  E.  369;  Tilley  v.  Rockingham  County  Light  &  Power  Co.,  74 
N.  H.  316,  67  Atl.  946 ;  Pagan  v.  Southern  Ry.,  78  S.  C  413,  59  S.  E.  32 ;  Rigs- 
by  V.  Oil  Well  Supply  Co.,  115  Mo.  App.  297,  91  S.  W.  460;  Doerr  v.  Daily 
News  Pub.  Co.,  97  Minn.  248,  106  N.  W.  1044;  Chesson  v.  Walker,  146  N.  C 
511,  60  S.  E.  422.  In  Missouri,  K.  &  T.  Ry.  Co.  v.  Wise  (Tex.  Civ.  App.)  106 
S.  W.  465,  it  was  held  that  employes  charged  with  the  duty  of  keeping  a 
place  to  work  and  machinery  in  a  safe  condition,  and  of  inspecting  the  same, 
are  vice  principals  of  the  employer,  regardless  of  their  rank.  See,  also,  New 
England  Telephone  &  Telegraph  Co.  v.  Butler.  156  Fed.  321,  84  C.  C.  A.  217 ; 
Wiiiiamson  Iron  Co.  v.  McQueen,  144  Ala.  2G5,  40  South.  306;    Koerner  v. 


§§  272-275)     master's  liability  for  injuries  to  servant.  529 

This  doctrine  is  recognized,  with  some  variations,  in  most  states. 
All  the  courts  agree  to  so  much  of  the  doctrine  as  holds  that  a 
master  who  intrusts  a  personal  duty  to  a  servant  makes  that  serv- 
ant, pro  hac  vice,  a  vice  principal,  and  that  he  is  liable  to  the 
other  servants  for  his  negligence  in  the  performance  of  those  du- 
ties.^'    Most   courts   also  hold   that   if  the  duty   which  the  master 


St.  Louis  Car  Co.,  209  Mo.  141,  107  S.  W.  481.  In  Cody  v.  Longyear,  103  Minn. 
116,  114  N.  W.  735,  it  was  held  that  where  a  vice  principal  orders  a  workman 
into  a  place  of  danger,  and  then,  without  warning,  starts  machinery  by  an  act 
which  would  have  been  performed  by  him  in  the  capacity  of  a  fellow  servant, 
he  will  be  held  to  have  acted  as  a  vice  principal  in  starting  the  machine,  as 
well  as  in  the  previous  act  which  placed  the  employ^  In  a  dangerous  situation. 
3  7  See  the  dictum  in  Baltimore  &  O.  R.  Co.  v.  Baugh,  149  U.  S.  368,  13 
Sup.  Ct.  914,  37  L.  BM.  772,  and  the  cases  hereafter  cited  in  this  note.  Em- 
ployes intrusted  with  furnishing  safe  premises  and  machinery  and  appli- 
ances are  not  fellow  servants  with  those  who  use  them,  so  as  to  exempt  the  mas- 
ter from  liability  for  their  negligence ;  but  in  respect  to  this  duty  they  stand 
in  the  place  of  the  master,  and  are  vice  principals.  Lewis  v.  Seifert,  116  Pa. 
628,  11  Atl.  514,  2  Am.  St.  Rep.  631 ;  Clegg  v.  Seaboard  Steel  Casting  Co.,  34 
Pa.  Super.  Ct.  63;  Bailey  v.  Swallow  (Minn.)  107  N.  W.  727;  Benzing  v. 
Steinway,  101  N.  Y.  547,  5  N.  E.  449 ;  Shanny  v.  Androscoggin  Mills,  66  Me. 
420,  426;  McElligott  v.  Randolph,  61  Conn.  157,  22  Atl.  1094,  29  Am.  St.  Rep. 
181;  Brown  v.  Gilchrist,  80  Mich.  56,  45  N.  W.  82,  20  Am.  St.  Rep.  490; 
Cadden  v.  American  Steel-Barge  Co.,  88  Wis.  409,  60  N.  W.  800:  Lawless  v. 
Railroad  Co.,  136  Mass.  1 ;  Houston  v.  Brush,  66  Vt.  331,  29  Atl.  380 ;  Chica- 
go, B.  &  Q.  R.  Co.  V.  Avery,  109  111.  315;  Nixon  v.  Lead  Co.,  102  Cal.  458, 
36  Pac.  803 ;  Krueger  v.  Railway  Co.,  Ill  Ind.  51,  11  N.  E.  957.  Most  courts 
apply  the  same  rule  to  employes  intrusted  with  repairs  of  premises  or  appli- 
ances. Fuller  v.  Jewett,  80  N.  Y.  46,  36  Am.  Rep.  575 ;  Corcoran  v.  Holbrook, 
59  N.  Y.  517,  17  Am.  Rep.  369 ;  Shanny  v.  Androscoggin  Mills,  supra ;  Roux 
v.  Lumber  Co.,  94  Mich.  607,  54  N.  W.  492 ;  Cincinnati,  H.  &  D.  R.  Co.  v.  Mc- 
Mullen,  117  Ind.  439,  20  N.  E.  287,  10  Am.  St.  Rep.  67;  Northern  Pac.  R.  Co. 
V.  Herbert,  116  U.  S.  642,  6  Sup.  Ct.  590,  29  L.  Ed.  755 ;  Lewis  v.  Railroad  Co., 
59  Mo.  495,  21  Am.  Rep.  385;  Tierney  v.  Railway  Co.,  33  Minn.  311,  23  N. 
W.  229,  53  Am.  Rep.  35 ;  Calvo  v.  Railroad  Co.,  23  S.  C.  526,  55  Am.  Rep.  28 ; 
Davis  V.  Railroad  Co.,  55  Vt.  84,  45  Am.  Rep.  590;  Moon's  Adm'r  v.  Railroad 
Co.,  78  Va.  745,  49  Am.  Rep.  401.  The  Massachusetts  court  holds  that  employes 
intrusted  with  ordinary  repairs  are  fellow  servants  of  the  employes  who  use 
the  premises  or  appliances.  Johnson  v.  Towboat  Co.,  135  Mass.  211,  40  Am. 
Kep.  458;  McGee  v.  Cordage  Co.,  139  Mass.  445,  1  N.  E.  745;  Moynihan  v. 
Hills  Co.,  146  Mass.  586,  16  N.  E.  574,  4  Am.  St.  Rep.  348 ;  Mellen  v.  Thomas 
Wilson  Sons  &  Co.,  159  Mass.  88,  34  N.  E.  96.  But  even  in  Massachusetts  the 
master  is  required  to  use  reasonable  care  and  supervision  to  see  that  repairs 
are  made  when  needed  by  those  to  whom  he  intrusts  the  duty.  Rogers  v. 
Manufacturing  Co.,  144  Mass.  204,  11  N.  E.  77,  59  Am.  Rep.  68 ;  Babcock  v, 
TiBr.P.&  D.Rel.(2d  Ed.)— 34 


530  MASTER  AND  SERVANT.  (Ch.  16 

delegates  to  a  servant  is  not  one  of  his  own  personal  duties,  but 
a  duty  which  may  be  so  delegated,  he  is  not  to  be  held  liable  to 
his   other   servants   for  that  servant's   negligence   in   performing   it; 

Railway  Co.,  150  Mass.  470,  23  N.  E.  325.  An  employe  to  whom  the  master  in- 
trusts the  duty  of  determining  where  the  other  employes  are  to  work  is  a  vice 
principal,  and  not  their  fellow  servant  in  the  performance  of  this  duty,  and 
the  master  is  liable  to  the  other  servants  for  the  negligence  of  such  servant 
in  not  keeping  the  premises  in  a  safe  condition.  Cole  Bros.  v.  Wood,  11  Ind. 
App.  37,  30  N.  E.  1074.  So,  also,  it  is  held  in  some  states,  perhaps  in  most, 
that  the  duty  of  inspection,  like  that  of  repair,  is  one  which  the  master  cannot 
delegate  so  as  to  be  exempt  from  liability  for  the  negligence  of  the  employ^ 
to  whom  he  intrusts  it;  and  that  an  inspector  of  premises,  machinery,  and 
appliances  is  not  a  fellow  servant  with  those  who  use  them.  Northern  Pac. 
R.  Co.  V.  Herbert,  IfO  U.  S.  642,  6  Sup.  Ct.  590,  29  L.  Ed.  755 ;  Cincinnati,  II. 
&"D.  R.  Co.  V.  McMullen,  117  Ind.  439,  20  N.  E.  287,  10  Am.  St.  Rep.  67 ;  Kiley 
V.  Rutland  R.  Co.,  SO  Vt.  530,  OS  Atl.  713 ;  Fay  v.  Railway  Co.,  30  Minn.  231, 
15  N.  W.  241 ;  Tierney  v.  Railway  Co.,  33  Minn.  311,  23  N.  W.  220,  53  Am. 
Rep.  35 ;  Macy  v.  Railroad  Co.,  35  Minn.  200,  28  N.  W.  249.  In  other  states 
it  is  held  that  a  master  performs  his  duty  when  he  furnishes  a  competent 
inspector,  and  that  the  negligence  of  the  inspector  causing  injury  to  another 
employe  is  the  negligence  of  a  fellow  servant.  Mackin  v.  Boston  &  A.  R.  R., 
135  Mass.  201,  46  Am.  Rep.  456 ;    Smith  v.  Potter,  46  Mich.  2."3S,  9  N.  W.  273, 

41  Am.  Rep.  161 ;  Dewey  v.  Detroit,  G.  H.  &  M.  Ry.  Co.,  97  Mich.  329,  56  N. 
W.  756,  16  L.  R.  A.  342,  22  L.  R.  A.  292,  37  Am.  St.  Rep.  348.  But  even  when 
the  master  employs  an  inspector,  if  the  servants  are  to  test  the  machiuel-y  be- 
fore using,  that  does  not  make  the  servant  an  inspector,  so  as  to  render  the 
master  liable  as  for  the  act  of  a  vice  principal,  when  the  servant  has  been 
negligent.  Fogarty  v.  Southern  Pac.  Co.,  151  Cal.  785,  91  Pac.  650.  An  em- 
ploye intrusted  with  the  duty  of  employing  competent  servants,  and  a  suffi- 
cient number  of  them,  is,  as  to  such  duty,  a  vice  principal,  and  not  a  fel- 
low servant  of  the  other  employes.  Laning  v.  Railroad  Co.,  49  N.  Y.  521, 
10  Am.  Rep.  417 ;  Flike  v.  Railroad  Co.,  53  N.  Y.  549,  13  Am.  Rep.  545 :  Core 
V.  Railroad  Co.,  38  W.  Va.  450,  18  S.  E.  596;  Cheeney  v.  Steamship  Co.,  92 
Ga.  726,  19  S.  E.  33,  44  Am.  St.  Rep.  113 ;   dictum  in  Quincy  Min.  Co.  v.  Kitts, 

42  Mich.  34,  3  N.  W.  240.  Thus,  where  an  enghieer,  having  authority,  places 
an  inexperienced  and  incompetent  fireman  in  charge  of  an  engine,  the  company 
is  liable  for  unavoidable  injuries  that  result  to  other  employes  by  such  fire- 
man's unskillful  management  ot  the  engine,  for  the  reason  that  it  is  a  breach 
of  the  duty  the  company  owes  to  its  employes  to  exercise  ordinary  care  in  pro- 
viding and  retaining  competent  servants.  Core  v.  Railroad  Co.,  38  W.  Va.  456, 
18  S.  E.  590.  The  duty  to  promulgate  necessary  and  proper  rules,  as  to  promul- 
gate time-tables  of  a  railroad,  is  the  master's  duty ;  and,  if  he  delegates  it  to  a 
servant,  the  latter  is  a  vice  principal  in  respect  to  such  duty.  Slater  v.  Jew- 
ett,  85  N.  Y.  61,  39  Am.  Rep.  627 ;  Lewis  v.  Seifert,  116  Pa.  628,  11  Atl.  514,  2 
Am.  St.  Rep.  631.  In  the  latter  case  the  employ^  was  a  train  dispatcher,  vest- 
ed with  authority  to  change  the  schedule  time,  and  make  new  time-tables; 


§§  272-275)     master's  liability  for  injuries  to  servant.  531 

for  as  to  such  a  duty  the  servant  is  to  be  regarded  as  their  fellow 
servant,  whatever  may  have  been  his  relative  grade  or  rank.^^  The 
difficulty,  as  is  shown  by  the  illustrations  given  in  the  note,  is  in  de- 
ana  He  was  neia  a  vice  principal  as  to  train  hands.  And  in  a  late  New  York 
case  it  was  held  that  the  train  dispatcher  of  a  division,  who,  in  directing  the 
movements  of  two  trains,  which  are  being  run  entirely  on  special  orders,  makes 
a  mistake,  whereby  the  trains  collide,  is  a  vice  principal  as  to  the  employes  on 
the  trains.  Hankins  v.  Railroad  Co.,  142  N.  Y.  416,  37  N.  E.  4GG,  25  L.  R.  A. 
396,  40  Am.  St.  Rep.  616.  And  see,  to  the  same  effect,  Little  Rock  &  M.  R. 
Co.  v.  Barry,  58  Ark.  198,  23  S.  W.  1097,  25  L.  R.  A.  386 ;  Hunu  v.  Railroad 
Co.,  78  Mich.  513,  44  N.  W.  502,  7  L.  R.  A.  500;  Darrigau  v.  Railroad  Co., 
52  Conn.  285,  52  Am.  Rep.  590.  Contra,  Norfolk  &  W.  R.  Co.  v.  Hoover,  79 
Md.  253,  29  Atl.  994 ;  Robertson  v.  Railroad  Co.,  78  Ind.  77,  41  Am.  Rep.  552. 
So,  too,  it  has  been  held,  in  Choctaw,  O.  &  G.  R.  Co.  v.  Doughty,  77  Ark.  1, 
91  S.  W.  768,  that  a  train  dispatcher,  who  governs  the  movement  of  trains 
and  issues  running  orders,  and  the  conductor,  under  whose  direction  the  train 
is  actually  run,  are  not  fellow  servants  of  a  fireman  on  the  train. 

38  A  railroad  company  may  delegate  the  duty  of  running  its  trains,  and, 
under  the  doctrine  above  stated,  it  will  not  be  liable  to  a  brakeman  or  fire- 
man, or  to  any  other  employe  riding  or  working  on  a  train,  for  the  negli- 
gence of  the  conductor  or  engineer.  They  are  all  fellow  servants.  Slater  v. 
Jewett,  85  N.  Y.  61,  39  Am.  Rep.  627 ;  Russell  v.  Railroad  Co.,  17  N.  Y.  134 ; 
Hayes  v.  Railroad  Corp.,  3  Cush.  (Mass.)  270;  Capper  v.  Railroad  Co.,  103 
Ind.  305,  2  N.  E.  749 ;  Thayer  v.  Railroad  Co.,  22  Ind.  20,  85  Am.  Dec.  409 ; 
Evausville  &  R.  R.  Co.  v.  Henderson,  134  Ind.  636,  33  N.  E.  1021 ;  Ellington 
V.  Lumber  Co.,  93  Ga.  53,  19  S.  E.  21 ;  Howlaud  v.  Railway  Co.,  54  Wis.  220, 
11  N.  W.  529 ;  Smith  v.  Potter,  46  Mich.  258,  9  N.  W.  273,  41  Am.  Rep.  161 ; 
Nashville,  C.  &  St.  L.  R.  Co.  v.  Wheless,  10  Lea  (Tenn.)  741,  43  Am.  Rep.  317. 
And  see  Baltimore  &  O.  R.  Co.  v.  Baugh,  149  U.  S.  368,  13  Sup.  Ct.  914,  37  L. 
Ed.  772.  But  compare  this  case  with  Chicago,  M.  &  St.  P.  Ry.  Co.  v.  Ross,  112 
U.  S.  377,  5  Sup.  Ct.  184,  28  L.  Ed.  787.  And  see  Atlantic  Coast  Line  R.  Co. 
V.  Beazley,  54  Fla.  311,  45  South.  761,  holding  that  a  conductor  is  vice  princi- 
pal in  his  relation  to  a  brakeman  on  the  same  train.  To  the  same  effect,  see 
Southern  Indiana  Ry.  Co.  v.  Baker,  37  Ind.  App.  405,  77  N.  E.  64 ;  Wilson 
V.  Southern  Ry.,  73  S.  C.  481,  53  S.  E.  968.  See,  however,  the  following  cas- 
es in  which  the  employes  were  held  fellow  servants;  Mate  and  common  sail- 
or upon  a  merchant  vessel,  Benson  v.  Goodwin,  147  Mass.  237,  17  N.  E.  517 ; 
foreman  or  other  superior  emijloye  and  laborer  under  him,  Duffy  v.  Upton, 
113  Mass.  544;  Moody  v.  Manufacturing  Co.,  159  Mass.  70,  34  N.  E.  185,  38 
Am.  St.  Rep.  396 ;  Gonsior  v.  Railway  Co.,  36  Minn.  385,  31  N.  W.  515 ;  Olson 
V.  Railway  Co.,  38  Minn.  117,  35  N.  W.  866 ;  Brown  v.  Railroad  Co.,  27  Minn. 
162,  6  N.  W.  484,  38  Am.  Rep.  285 ;  Hanna  v.  Granger,  18  R.  I.  507,  28  Atl. 
659 ;  Di  Marcho  v.  Iron  Foundry,  18  R.  I.  514,  28  Atl.  661 ;  Lawler  v.  Rail- 
road Co.,  62  Me.  463,  16  Am.  Rep.  492;  Stutz  v.  Armour,  84  Wis.  623.  54 
N.  W.  1000;  Hoth  v.  Peters,  55  Wis.  405,  13  N.  W.  219;  Johnson  v.  Water 
Co.,  77  Wis.  51,  45  N.  W.  807;    Peschel  v.  Railway  Co.,  62  Wis.  338,  21  N. 


532  MASTER  AND  SERVANT.  (Ch.  16 

termining,  in  the  application  of  this  doctrine,  whether  the  duty 
in  the  performance  of  which  the  servant  was  negligent  was  or  was 
not  one  which  the  master  could  delegate. 

If  the  master  intrusts  the  entire  conduct  and  control  of  his  busi- 
ness, or  a  part  of  it,  to  an  employe,  the  latter  stands  in  the  master's 
place,  and  is  not  to  be  regarded  as  a  fellow  servant  of  the  other 
employes.  "Whenever  the  business  conducted  by  the  person  select- 
ed by  the  master  is  such  that  the  person  selected  is  invested  with 
full  control  (subject  to  no  one's  supervision,  except  the  master's) 
over  the  action  of  the  employes  engaged  in  carrying  on  a  particu- 
lar branch  of  the  master's  business,  and,  acting  upon  his  own  dis- 
cretion, according  to  general  instructions  laid  down  for  his  guid- 
ance, it  is  his  province  to  direct,  and  the  duty  of  the  employes  to 
obey,  then  he  stands  in  the  place  of  the  master,  and  is  not  a  fellow 
servant  with  those  whom  he  controls."  ^®  Such  an  employe,  it  has 
been  said,  is  not  a  servant  at  all,  but  an  agent. 

In  a  few  states  the  New  York  doctrine  is  not  recognized,  but,  on 
the  contrary,  the  rank  or  grade  of  the  negligent  servant,  and  not 
merely  the  scope  of  his  duties  and  nature  of  the  act  or  omission, 
is  considered,  in  determining  his  character.  It  is  held  in  these 
states  that  if  one  servant  is  placed  in  control  of  the  others,  as  a 
foreman,  for  instance,  he  does  not  occupy  the  relation  of  their 
fellow   servant.     "No  service  is  common,"   said  the  Ohio  court   in 

W.  269 ;  Dube  v.  City  of  Lewiston,  83  Me.  211,  22  Atl.  112 ;  Cullen  v.  Nor- 
ton, 126  N.  Y.  1,  26  N.  E.  905 ;  Keystone  Bridge  Co.  v.  Newberry,  96  Pa.  246, 
42  Am.  Rep.  543 ;  Peterson  v.  Mining  Co.,  50  Iowa,  674,  32  Am.  Rep.  143 ;  Doerr 
V.  Daily  News  Pub.  Co.,  97  Minn.  248,  106  N.  W.  1044;  American  Bridge  Co. 
V.  Seeds,  144  Fed.  605,  75  C.  C.  A.  407,  11  L.  R.  A.  (N.  S.)  1041 ;  Westinghouse, 
Church,  Kerr  &  Co.  v.  Callaghan,  155  Fed.  397,  83  C.  C-  A.  669. 

3  9  Hunn  V.  Railroad  Co.,  78  Mich.  513,  44  N.  W.  502,  7  L.  R.  A.  500.  And 
see  Corcoran  v.  Holbrook,  59  N.  Y.  517,  17  Am.  Rep.  369;  Sheehan  v.  Rail- 
road Co.,  91  N.  Y.  332;  Pautzar  v.  Mining  Co.,  99  N.  Y.  368,  2  N.  E.  24; 
Taylor  v.  Railway  Co.,  121  Ind.  124,  22  N.  E.  876,  6  L.  R.  A.  584,  16  Am. 
St.  Rep.  372;  Mitchell  v.  Robinson,  80  Ind.  281,  41  Am.  Rep.  812;  Lewis  v. 
Seifert,  116  Pa.  628,  11  Atl.  514,  2  Am.  St.  Rep.  631;  Mullan  v.  Steamship 
Co.,  78  Pa.  25,  21  Am.  Rep.  2;  Chicago  Anderson  Pressed-Brick  Co.  v.  S(il;kn- 
wiak,  148  111.  573,  36  N.  E.  572 ;  Brothers  v.  Cartter,  52  Mo.  373,  14  Am.  Rep. 
424;  Dobbin  v.  Railroad  Co.,  81  N.  C.  446,  31  Am.  Rep.  512;  Hamaun  v. 
Milwaukee  Bridge  Co.,  127  Wis.  550,  106  N.  W.  1081 ;  Pennsylvania  R.  Co.  v. 
Hartell,  157  Fed.  607,  85  C.  C.  A.  335 ;  Henrietta  Coal  Co.  v.  Martin,  221  111 
460,  77  N.  E.  902,  affirming  122  111.  App.  354 ;  Moore  v.  King  Mfg.  Co.,  124  Ga. 
576,  53  S.  E.  107. 


§§  272-275)     master's  liability  for  injuries  to  servant.  533 

applying  this  doctrine,  "that  does  not  admit  a  common  participa- 
tion, and  no  servants  are  fellow  servants  when  one  is  placed  in  con- 
trol over  the  other."  *^  The  Supreme  Court  of  the  United  States 
seems  to  have  laid  down  this  doctrine,  in  the  Ross  Case,  decided  in 
1884,  and  its  decision  was  so  construed  by  the  other  courts ;  *^  but 
in  the  Baugh  Case,  decided  in  1893,  the  contrary  doctrine  was  recog- 
nized and  afifirmed.** 

4  0  Cleveland,  C.  &  C.  R.  Co.  v.  Keary,  3  Ohio  St.  201.  The  leading  case 
holding  this  doctrine  is  Little  Miami  R.  Co.  v.  Stevens,  20  Ohio,  415.  Berea 
Stone  Co.  v.  Kraft,  31  Ohio  St.  291,  27  Am.  Rep.  510 ;  Louisville  &  N.  R.  Co. 
V.  Collins,  2  Duv.  (Ky.)  114,  87  Am.  Dec.  486;  Newport  News  &  M.  Val.  Co. 
V.  Dentzel's  Adm'r,  91  Ky.  42,  14  S.  W.  958;  Miller  v.  Railw^ay  Co.,  109  Mo. 
350,  19  S.  W.  58,  32  Am.  St.  Rep.  673;  Illinois  Cent.  R.  Co.  v.  Spence,  93 
Tenn.  173,  23  S.  W.  211,  42  Am.  St.  Rep.  907 ;  Moon's  Adm'r  v.  Railroad  Co., 
78  Va.  745,  49  Am.  Rep.  401 ;  Chicago,  St.  P.,  M.  &  O.  Ry.  Co.  v.  Lundstrom, 
16  Neb.  254,  20  N.  W.  198,  49  Am.  Rep.  718.  And  see  Madden's  Adm'r  v. 
Railway  Co.,  28  W.  Va.  610,  57  Am.  Rep.  695.  Thus,  according  to  this  doc- 
trine, it  is  held  that  a  foreman  in  charge  of  hands  engaged  in  a  particular 
piece  of  work  is  not  their  fellow  servant  in  respect  to  such  work.  Lake  Shore 
&  M.  S.  Ry.  Co.  V.  Lavalley,  36  Ohio  St.  221 ;  Miller  v.  Railway  Co.,  109  Mo. 
850,  19  S.  W.  58,  32  Am.  St.  Rep.  673;  Chicago,  St.  P.,  M.  &  O.  Ry.  Co.  v. 
Lundstrom,  16  Neb.  254,  20  N.  W.  198,  49  Am,  Rep.  718.  And  it  is  held  that 
a  conductor  having  control  of  a  train  is  not  a  fellow  servant  of  the  brake- 
man,  fireman,  or  engineer.  Lake  Shore  &  M.  S.  Ry.  Co.  v.  Spangler,  44  Ohio 
St.  471,  8  N.  E.  467,  58  Am.  Rep.  833;  Little  Miami  R.  Co.  v.  Stevens,  20 
Ohio,  415;  Cleveland,  C.  &  C.  R.  Co.  v.  Keary,  3  Ohio  St.  201;  Haney  v. 
Railway  Co.,  38  W.  Va.  570,  18  S.  E.  748;  Newport  News  &  M.  Val.  Co.  v. 
Dentzel's  Adm'r,  91  Ky.  42,  14  S.  W.  958;  Moon's  Adm'r  v.  Railroad  Co.,  78 
Va.  745,  49  Am.  Rep.  401 ;  Miller  v.  Railway  O).,  109  Mo.  350,  19  S.  W.  58,  32 
Am.  St.  Rep.  673 ;  Illinois  Cent.  R.  Co.  v.  Spence,  93  Tenn.  173,  23  S.  W.  211,  42 
Am.  St.  Rep.  907;  Atlantic  Coast  Line  R.  Co.  v.  Beazley,  54  Fla.  311,  45 
South.  761.  An  engineer  is  vice  principal,  and  not  fellow  servant,  of  his 
fireman.  Pagan  v.  Southern  Ry.,  78  S.  C.  413,  59  S.  E.  32.  The  fact  that  the 
foreman  or  superintendent  sometimes  acts  in  the  capacity  of  a  colaborer 
does  not  affect  his  status  as  a  vice  principal.  Chicago  Anderson  Pressed 
Brick  Co.  v.  Sobkowiak,  148  111.  573,  36  N.  E.  572;  Chicago  &  E.  I.  R.  Co.  v. 
Kimmel,  221  111.  547,  77  N.  E.  936;  Marquette  Cement  Mfg.  Co.  v.  Williams, 
230  111.  26,  82  N.  E.  424 ;  Hollweg  v.  Bell  Telephone  Co.,  195  Mo.  149,  93  S. 
W.  262. 

41  Chicago,  M.  &  St.  P.  Ry.  Co.  v.  Ross,  112  U.  S.  377,  5  Sup.  Ct.  184,  28 
L.  Ed.  787.  In  this  case,  approving  the  Ohio  and  Kentucky  decisions,  it  was 
held  that  the  conductor  and  engineer  of  a  railroad  train  were  not  fellow 
servants.  Mr,  Justice  Field  delivered  the  opinion  in  this  case.  Mr.  Justice 
Bradley,  Mr.  Justice  Matthews,  Mr.  Justice  Gray,  and  Mr.  Justice  Blatchford 
dissented. 

42  Baltimore  &  O.  R.  Co.  v.  Baugh,  149  U.  S.  368,  13  Sup.  Ct  914,  37  L. 


534  MASTER   AND   SERVANT.  (Ch.  16 

In  England,  and  in  most  of  the  states  in  this  country,  servants 
of  the  same  master,  engaged  in  carrying  forward  the  same  common 
enterprise,  are  regarded  as  fellow  servants,  within  the  meaning  of 
the  general  rule,  although  they  may  be  in  different  and  widely- 
separated  departmen<:s.  The  rule  "is  not  confined  to  the  case  of 
two  servants  working  in  company,  or  having  opportunity  to  con- 
trol or  influence  the  conduct  of  each  other,  but  extends  to  every  case 
in  which  the  two,  deriving  their  authority  and  their  compensation 
from  the  same  source,  are  engaged  in  the  same  business,  though 
in  different  departments  of  duty."  *^     In  Illinois,  and  several  of  the 

Ed.  772.  In  this  case  it  was  held,  purporting  to  distinguish  the  Ross  Case, 
supra,  that  the  engineer  and  fireman  of  a  train  were  fellow  servants,  though 
the  rules  of  the  company  declared  that  the  engineer,  under  the  circumstances, 
should  also  be  regarded  as  a  conductor.  Mr.  Justice  Brewer  delivered  the 
opinion  in  this  case.  INIr.  Chief  Justice  Fuller  and  Mr.  Justice  Field  dissented. 
43  Holden  v.  Fitchburg  R.  Co.,  129  Mass.  268,  37  Am.  Rep.  343;  Farwell  v. 
Boston  &  W.  R.  Corp.,  4  Mete.  (Mass.)  49,  38  Am.  Dec.  339;  Adams  v.  Iron 
Cliffs  Co.,  78  Mich.  288,  44  N.  W.  270,  18  Am.  St.  Rep.  441;  Lawler  v.  An- 
droscoggin R.  Co.,  G2  Me.  4G3.  16  Am.  Rep.  492;  Doughty  v.  Penobscot  Log 
Driving  Co.,  76  Me.  145 ;  Rose  v.  Boston  &  A.  R.  Co.,  58  N.  Y.  217 ;  Jenkins 
V.  Richmond  &  D.  R.  Co.,  39  S.  C.  507,  18  S.  E.  182,  39  Am.  St.  Rep.  750; 
Neal  V.  Northern  Pac.  R.  Co.,  57  Minn.  365,  59  N.  W.  312;  Westinghouse, 
Church,  Kerr  &  Co.  v.  Callaghan,  155  Fed.  397,  83  C.  C.  A.  669 ;  Vilter  Mfg. 
Co.  V.  Otte,  157  Fed.  230,  84  C.  C.  A.  673 ;  Johnson  v.  Boston  &  M.  R.  R.,  78 
Vt.  344,  62  Atl.  1021,  4  L.  R.  A.  (N.  S.)  856 ;  Southern  Ry.  Co.  v.  Smith,  107 
Va.  553,  59  S.  E.  372 ;  Wabash  R.  Co.  v.  Hassett  (lud.)  83  N.  E.  705 ;  Chicago, 
I.  &  L.  Ry.  Co.  V.  Barker,  169  Ind.  670,  83  N.  E.  369;  Church  v.  Winchester 
Repeating  Arms  Co.,  78  Conn.  720,  63  Atl.  510;  Keneflck-Hammond  Co.  v 
Rohr,  77  Ark.  290,  91  S.  W.  179;  Missouri,  K.  &  T.  Ry.  Co.  v.  Hendricks 
(Tex.  Civ.  App.)  108  S.  W.  745.  Accordingly  it  has  been  held  that  the  fol- 
lowing employes  are  fellow  servants:  Locomotive  engineer  or  conductor  and 
switchman,  Farwell  v.  Boston  &  W.  R.  Corp.,  4  Mete,  (^ilass.)  49,  38  Am. 
Dec.  339;  engineer  and  brakeman.  Southern  Ry.  Co.  v.  Elliott  (Ind.)  82  N. 
E.  1051;  engineer  and  fireman,  Healy  v.  Buffalo,  R.  &  P.  Ry.  Co.,  Ill  App. 
Div.  618,  97  N.  Y.  Supp.  801;  engineer  and  locomotive  cleaner.  Sage  v. 
Baltimore  &  o:  R.  Co.,  219  Pa.  129,  67  Atl.  985;  workmen  in  repair  shop 
of  railroad,  who  are  being  carried  on  a  train,  and  a  flagman  or  switchman, 
Gilman  v.  Railroad  Corp.,  10  Allen  (Mass.)  233,  87  Am.  Dec.  635;  laborers 
on  railroad  tracks  or  bridges  and  engineers  or  conductors  of  train,  whether 
the  former  are  injured  while  being  carried  on  the  train,  or  while  at  work  on 
the  road  or  bridge,  Seaver  v.  Railroad  Co.,  14  Gray  (Mass.)  466;  Dick  v. 
Railroad  Co.,  38  Ohio  St.  389 ;  Russell  v.  Railroad  Co.,  17  N.  Y.  134 ;  Evans- 
ville  &  R.  R.  Co.  v.  Henderson,  134  Ind.  636,  33  N.  E.  1021 ;  Schaible  v.  Rail- 
way Co.,  97  Mich.  318,  56  N.  W.  565,  21  L.  R.  A.  660;  founder  in  a  blast 
furnace,  having  charge  of  the  inside  work  of  the  furnace,  and  the  engineer 


§§  272-275)    master's  liability  for  injuries  to  servant.  535 

other  states,  the  rule  is  different;  and  servants  employed  by  the 
same  master,  and  in  the  same  general  enterprise,  are  not  regarded 
as  being  fellow  servants,  within  the  rule  exempting  the  master, 
unless  their  duties  are  such  as  to  bring  them  into  personal  asso- 
ciation, or  unless  they  are  actually  co-operating  at  the  time  of  the 
injury.  If  they  are  in  entirely  separate  and  distinct  departments, 
the  courts  of  these  states  apply  the  doctrine  of  respondeat  superior, 
and  hold  the  master  liable.** 

Employer's  Liability  Acts. 

In  a  number  of  states  statutes  known  as  "Employer's  Liability 
Acts"  have  been  enacted,  defining  the  liability  of  the  master  for  in- 
juries to  a  servant  due  to  defects  in  appliances  and  places  for  work, 

of  a  locomotive  used  by  the  same  company  in  moving  cars  on  Its  premises, 
Adams  v.  Iron  Cliffs  Co.,  78  Mich.  288,  44  N.  W.  270,  18  Am.  St.  Rep.  441 ; 
brakeman  and  car  inspector,  the  latter  being  injured  by  the  negligence  of  the 
former.  Potter  v.  New  York,  etc.,  R.  Co.,  136  N.  Y.  77,  32  N.  E.  603.  As  to 
the  rule  where  the  inspector  is  negligent,  see  ante,  p.  527,  note  32.  Brake- 
man  and  men  who  make  up  trains,  ThsTig  v.  Railroad  Co.,  156  jMass.  16, 
30  N.  E.  169,  32  Am.  St.  Rep.  425. 

4  4  Chicago  &  N.  W.  R.  Co.  v.  Moranda,  93  111.  302,  34  Am.  Rep.  108  (collect- 
ing the  Illinois  cases,  and  reviewing  the  doctrine) ;  Union  Pac.  Ry.  Co.  v. 
Erickson,  41  Neb.  1,  59  N.  W.  347,  29  L.  R.  A.  137 ;  Peoria,  D.  &  E.  Ry.  Co, 
V.  Rice,  144  111.  227,  33  N.  E.  951;  Louisville.  E.  &  St.  L.  Consol.  R.  Co. 
V.  Hawthorn,  147  111.  226,  35  N.  E.  534;  Schlereth  v.  Railway  Co.,  115  Mo. 
87,  21  S.  W.  1110 ;  Card  v.  Eddy  (Mo.)  24  S.  W.  746 ;  Moon's  Adm'r  v.  Rail- 
road Co.,  78  Va.  745,  49  Am.  Rep.  401;  Madden's  Adm'r  v.  Railway  Co.,  28 
W.  Va.  610,  57  Am.  Rep.  695;  St.  Louis  &  S.  F.  Ry.  Co.  v.  Weaver,  35  Kan. 
412,  11  Pac.  408,  57  Am.  Rep.  176;  Kane  v.  Erie  R.  Co.,  142  Fed.  682,  73 
C.  C.  A.  672;  Lanniug  v.  Chicago  Great  Western  Ry.  Co.,  196  Mo.  647,  94 
S.  W.  491 ;  Louisville  &  N.  R.  Co.  v.  Brown,  106  S.  W.  795,  32  Ky.  Law  Rep. 
552,  13  L.  R.  A.  (X,  S.)  1135 ;  Illinois  Cent.  R.  Co.  v.  Tandy,  107  S.  W.  715, 
32  Ky.  Law  Rep.  962 ;  St.  Louis,  I,  M.  &  S.  Ry.  Co.  v.  Dupree,  84  Ark.  377, 
105  S.  W.  878,  120  Am.  St.  Rep.  74 ;  Texas  &  P.  Ry.  Co.  v.  Nichols,  41  Tex. 
Civ.  App.  119,  92  S.  W.  411 ;  Houston  &  T.  C.  R.  Co.  v.  Turner,  99  Tex.  547, 
91  S.  W.  502.  In  some  of  these  cases  the  theory  is  that  only  those  are  fel- 
low servants  who  are  directly  co-operating  with  each  other  and  who  are  in 
habitual  association,  so  that  they  may  observe  and  influence  each  other's 
conduct  and  exercise  a  mutual  influence  on  each  other  promotive  of  proper 
caution.  Chicago  &  N.  W.  R.  Co.  v.  Moranda,  93  111.  302,  34  Am.  Rep.  168; 
Gathman  v.  City  of  Chicago,  127  111.  App.  150;  Illinois  Terminal  R.  Co.  v. 
Chapin,  128  111.  App.  170,  affirmed  Chaplin  v.  Illinois  Terminal  R.  Co.,  227 
111.  166,  81  N.  E.  15 ;  Illinois  Steel  Co.  v.  Ziemkowski,  220  111.  324,  77  N.  E. 
190,  4  L.  R.  A.  (N.  S.)  1161 ;  Koerner  v.  St.  Louis  Car  Co.,  209  Mo.  141,  107 
S.  W.  481. 


536  MASTER  AND   SERVANT.  (Ch.  16 

or  to  the  negligence  of  other  employes.*'  In  some  instances  these 
statutes  are  merely  declaratory  of  the  common  law,*"  while  in  oth- 
ers they  establish  rules  differing  in  some  respects  from  the.  rules 
established  by  the  courts  in  the  absence  of  a  statute.*^  Thus,  in 
Massachusetts,  a  superintendent  was  regarded  as  the  fellow  servant 
of  employes  under  him ;  but  the  employer's  liability  act "  makes 
the  master  liable  for  injuries  due  to  the  negligence  of  a  superintend- 
ent.** So,  too,  in  some  instances  the  master  is  made  liable  for  the 
negligence  of  a  superior  employe  or  agent.**"  In  some  states  the 
statutes  relate  only  to  railroad  companies  and  their  employes." 

Whenever  the  question  has  been  directly  presented,  the  constitu- 
tionality of  these  statutes  has  been  upheld. 


02 


RIGHTS    OF   MASTER   AS   AGAINST   THIRD   PERSONS. 

276,  The  master  may  recover  from,  third  persons  for  any  damage  he 
may  have  suffered  by  reason  of  their  wrongful  interference 
with  his  relationship  to  the  servant,  either  by  enticing  the 
servant  away,  abducting  or  harboring  him,  by  inflicting  per- 
sonal injuries  upon  him,  or  falsely  imprisoning  him,  or  other- 
w^ise  depriving  the  master,  in  whole  or  in  part,  of  his  services. 

4B  Rev.  Laws,  Mass.  1902,  c.  lOG;  Laws  N.  T.  1902,  p.  1748,  c.  600;  Civ. 
Code,  Ala.  1907,  §  3910;  Burns'  Ann.  St.  Ind.  1901,  §§  7083-7087;  Act  Pa. 
June  10,  1907  (P.  L.  523);  Mills'  Ann.  St.  Rev.  Supp.  Colo.  1891-1905,  §§ 
1511a,  1511f  (Laws  1901.  p.  161,  c.  67). 

4  6  Cleveland,  C,  C.  &  St.  L.  Ry.  Co.  v.  Scott,  29  Ind.  App.  519,  64  N.  E. 
89G.  And  see  Hess  v.  Adamant  Mfg.  Co.,  66  Minn.  79,  68  N.  W.  774,  con- 
struing Gen.  Laws  Minn.  1895,  p.  390,  c.  173;  Congrave  v.  Southern  Pac.  R. 
Co.,  88  Cal.  360,  26  Pac.  175,  construing  Civ.  Code  Cal.  190C,  §  1970. 

*7  Columbus  &  W.  Ry.  Co.  v.  Bradford,  86  Ala.  574,  6  Soutli.  90. 

4  8  Laws  1887,  p.  899,  c.  270;    Rev.  Laws  1902,  c.  106. 

49  See  Malcolm  v.  Fuller,  152  Mass.  160,  25  N.  E.  83;  Davis  v.  Railroad 
Co.,  159  Mass.  532,  34  N.  B.  1070;  O'Brien  v.  Rideout,  161  Mass.  170,  36  N. 
E.  792. 

BO  Evans  v.  Railway  Co.,  70  Miss.  527,  12  South.  581. 

61  See,  for  example,  Rev.  St.  Mo.  1899,  §  2873  (Ann.  St.  1906,  p.  1655) ;  Bates' 
Ann.  St.  Ohio,  §  3365-22 ;  Code  Iowa,  1897,  §  2071 ;  Rev.  Laws  Minn.  1905, 
§  2042 ;    Laws  N.  Y.  1906,  p.  1682,  c.  657. 

52  Colorado  Mill  &  Elevator  Co.  v.  Mitchell,  26  Colo.  284,  58  Pac.  28;  In- 
dianapolis Union  Ry.  Co.  v.  Houlihan,  157  Ind.  494,  60  N.  E.  ^3,  54  I^  R. 
A.  787;  Powell  v.  Sherwood,  162  Mo.  005,  63  S.  W.  485;  Bucklew  v.  Cen- 
tral Iowa  R.  Co.,  64  Iowa,  603,  21  N.  W.  103 ;  Erie  R.  Co.  v.  Kane,  155  Fed. 
118,  83  C.  C.  A.  564 ;  Schradin  v.  New  York  Cent.  &  H.  R.  R.  Co.  (Sup.)  109 
N.  Y.  Supp.  428. 


§   276)  RIGHTS   OF   MASTER   AGAINST   THIRD   PERSON.  537 

Whenever  a  servant  is  knowingly  enticed  "'  from  his  master's  serv- 
ice, the  master  may  maintain  an  action  of  trespass  on  the  case  per 
quod  servitium  amisit  against  the  enticer;  and  such  an  action 
will  also  lie  at  common  law  against  one  who  harbors  a  servant, 
knowing  that  he  has  wrongfully  left  his  master.  A  master  may 
also  maintain  an  action  against  one  who  willfully,  as  by  an  assault 
and  battery,  or  false  imprisonment,  or  negligently,  inflicts  personal 
injury  upon  his  servant,  resulting  in  loss  of  service  to  the  master, 
or  by  any  other  wrong  causes  such  loss  of  service.'* 

B8  "It  Is  a  material  and  necessary  allegation  that  the  defendant  knew,  at 
the  time  of  enticing,  employing,  or  harboring,  that  the  party  enticed  away, 
employed,  or  harbored  was  the  servant  of  the  plaintiff,  or  that  he  afterwards 
had  notice  thereof,  and  continued  to  employ  or  harbor  the  servant  after  such 
notice.  And  such  knowledge  or  notice  must  be  proved  in  order  to  support 
the  action."  Butterfield  v.  Ashley,  6  Cush.  (Mass.)  249.  And  see  Caughey 
V.  Smith,  47  N.  Y.  244. 

0*  1  Jag.  Torts,  448.  Enticing  away  servant,  Keane  v.  Boycott,  2  H.  Bl. 
511;  Lumley  v.  Gye,  2  El.  &  Bl.  216;  Bixby  v.  Dunlap,  56  N.  H.  456,  22  Am. 
Rep.  475,  and  note  therein  at  pages  485-490 ;  Salter  v.  Howard.  43  Ga.  601 ; 
Walker  v.  Cronin.  107  Mass.  555 ;  Scidmore  v.  Smith,  13  Johns.  (N.  Y.)  322 ; 
Woodward  v.  Washburn,  3  Denio  (N.  Y.)  369;  Caughey  v.  Smith,  47  N.  Y. 
244 ;  Jones  v.  Blocker,  43  Ga.  331 ;  Haskins  v.  Royster,  70  N.  C.  601,  16  Am. 
Rep.  780;  Duckett  v.  Pool,  33  S.  C.  238,  11  S.  E.  689;  Milburne  v.  Byrne,  1 
Cranch,  C.  C.  239,  Fed.  Cas.  No.  9,542.  Abduction  of  servant,  Sherwood  v 
Hall,  3  Sumn.  127,  Fed.  Cas.  No.  12,777;  Plummer  v.  Webb,  4  Mason,  380, 
Fed.  Cas.  No.  11,233.  Preventing  a  person  from  entering  the  service  of  an- 
other by  menaces  and  threats  or  other  unlawful  means.  Walker  v.  Cronin, 
107  Mass.  555.  Harboring  another's  servant,  Blake  v.  Lanyon,  6  Term  R. 
221;  Sherwood  v.  Hall,  3  Sumn.  127,  Fed.  Cas.  No.  12,777;  Scidmore  v. 
Smith,  13  Johns.  (N.  Y.)  322.  But  in  Massachusetts  it  is  held  that  one  who 
does  nothing  to  entice  a  servant  to  leave  his  master's  employment  does  not 
become  liable  to  the  master  for  employing  him  after  he  has  left  of  his  own 
accord.  Butterfield  v.  Ashley,  6  Cush.  (Mass.)  249,  2  Gray  (Mass.)  254.  Se- 
duction or  debauching  of  female  servant,  Edmondson  v.  Machell,  2  Term  R. 
4 ;  Moran  v.  Dawes,  4  Cow.  (N.  Y.)  412.  Willfully  or  negligently  causing 
personal  injury  to  servant,  Ames  v.  Railway  Co.,  117  Mass.  541,  19  Am.  Rep. 
426;  Fluker  v.  Banking  Co.,  81  Ga.  461,  8  S.  E.  529,  2  L.  R.  A.  843,  12  Am. 
St.  Rep.  328.  False  arrest  and  imprisonment  of  servant,  St.  Johnsbury  & 
L.  C.  R.  Co.  V.  Hunt,  55  Vt.  570,  45  Am.  Rep.  639 ;  Woodward  v.  Washburn, 
3  Denio  (N.  Y.)  369.  The  statute  of  frauds,  while  it  may  be  a  good  defense 
in  an  action  by  either  of  the  parties  on  a  verbal  contract  of  hiring  for  a  lon- 
ger period  than  a  year,  is  no  defense  in  an  action  by  the  master  against  a 
third  person  for  enticing  away  the  servant.  Duckett  v.  Pool,  33  S.  C.  238,  11 
S.  E.  689.  Nor  is  the  infancy  of  the  servant  any  defense,  since  he  alone  is  en- 
titled to  avoid  the  contract  on  that  ground.    Keane  v.  Boycott,  2  H.  Bl.  511. 


538  MASTER  AND   SERVANT.  (Ch.  16 

It  has  been  said  that  this  doctrine  was  confined,  at  common  law, 
to  menial  or  domestic  servants  and  apprentices ;  and  under  this 
view  it  has  been  held  that,  as  laborers  employed  by  a  man  to  work 
his  crops  for  a  share  therein  are  not  menial  servants,  the  master 
cannot  maintain  an  action  for  loss  of  service  against  one  who  in- 
jures such  an  employe."^'  The  weight  of  authority,  however,  is 
against  this  view.  The  Massachusetts  court,  referring  to  the  mas- 
ter's right  of  action  for  enticing  away  his  servant,  said:  "It  has 
sometimes  been  supposed  that  this  doctrine  sprang  from  the  Eng- 
lish statute  of  laborers,  and  was  confined  to  menial  service.  But 
we  are  satisfied  that  it  is  founded  upon  the  legal  right  derived  from 
the  contract,  and  not  merely  upon  the  relation  of  master  and  serv- 
ant, and  that  it  applies  to  all  contracts  of  employment."  ^^  To  en- 
title a  master  to  recover  from  one  who  injures  or  entices  away  his 
servant,  it  is  sufficient  to  show  a  subsisting  relation  of  service,  even 
though  it  may  be  determinable  at  will.'^'^  To  induce — but  not 
maliciously — a  servant  to  leave  his  master's  service  when  the  time 
for  which  he  has  hired  himself  shall  expire  is  not  actionable,  though 
the  servant  may  have  previously  had  no  intention  of  leaving.^^ 
If  a  third  person  maliciously,  and  not  in  the  exercise  of  any  right 
which  the  law  gives  him,  procures  a  servant  to  break  his  contract 
and  leave  his  master,  or  even  to  leave  an  employment  at  will,  and 
damage  thereby  results  to  the  master,  the  latter  may  maintain  an 
action  against  the  wrongdoer."** 


68  Burgess  v.  Carpenter,  2  S.  C.  7,  16  Am.  Rep.  643;  Huff  v.  "Watklns,  15 
S.  C.  82,  40  Am.  Rep.  6S0 ;  but  see  Daniel  v.  Swearengen,  6  S.  C.  297,  24  Am. 
Rep.  471. 

8  6  Walker  v.  Cronin,  107  Mass.  555.  And  .see  Haskins  v.  Royster,  70  N. 
C.  601,  16  Am.  Rep.  780;  Jones  v.  Blocker,  43  Ga.  331;  Salter  v.  Howard, 
Id.  001 ;   Daniel  v.  Swearengen,  6  S.  C.  297,  24  Am.  Rep.  471. 

6  7  Keane  v.  Boycott,  2  H.  Bl.  511;  Evans  v.  Walton,  L.  R.  2  G.  P.  615; 
Haskins  v.  Royster,  70  N.  C.  601,  16  Am.  Rep.  780. 

6  8  Boston  Glass  Manufactory  v.  Binney,  4  Pick.  (Mass.)  425. 

69  Bowen  v.  Hall,  6  Q.  B.  Div.  333;  Lumley  v.  Gye,  2  El.  &  Bl.  216;  Walker 
V.  Cronin,  107  Mass.  555 ;  Chipley  v.  Atkinson,  23  Fla.  20G,  1  South.  934,  11 
Am.  St.  Rep.  367  (collecting  the  cases) ;  Thacker  Coal  &  Coke  Co.  v.  Burke, 
59  W.  Va.  253,  53  S.  E.  161,  5  L.  R.  A.  (N.  S.)  1091 ;  McBride  v.  O'Neal,  128 
Ga.  473,  57  S.  E.  789 ;  George  Jonas  Glass  Co.  v.  Glass  Bottle  Blowers'  Ass'n 
of  United  States  &  Canada  (N.  J.  Ch.)  66  Atl.  953. 


§  277)  RIGHTS   OF  SERVANT  AGAINST  THIRD   PERSONS.  539 

BIGHTS    OF   SERVANT   AGAINST   THIRD    PERSONS. 

277*  A  servant  may  maintain  an  action  against  a  third  person  for 
causing  his  discharge,  if  he  acted  gratuitously  and  maliciously, 
and  damage  has  resulted,  but  not  other\vise. 

A  man  may  withhold  his  trade  from  another,  or  even  break  a 
contract  with  him,  for  the  reason  that  he  employs  a  certain  person, 
and  if  the  employe  is  discharged  he  has  no  cause  of  action  against 
such  person  for  causing  his  discharge;  for  a  man  does  not  become 
liable  for  injury  to  another,  caused  by  an  act  which  he  has  a  legal 
right  to  do.*°  But  a  man  cannot  maliciously  and  wantonly  in- 
terfere with  another's  rights  without  rendering  himself  liable  for 
resulting  damage.  As  a  master  has  a  right  of  action  against  one 
who  maliciously  induces  his  servant  to  leave  him,  so,  also,  it  is 
held  that  an  action  will  lie  on  behalf  of  a  servant  against  a  person 
who  has  maliciously  procured  the  master  to  discharge  him  from 
employment  under  a  legal  contract.  And  it  has  been  further  held 
that  the  fact  that  no  contract,  nor  any  legal  right  of  the  servant 
against  the  master,  is  violated  by  the  master,  or  that  no  action  will 
lie  by  the  servant  against  the  master  for  the  discharge,  does  not 
prevent  a  recovery  against  the  third  person  for  maliciously  procur- 
ing the  discharge,  if  it  would  not  have  occurred  but  for  such  pro- 
curement."^ 

«o  Chipley  v.  Atkinson,  23  Fla.  206,  1  South.  934,  11  Am.  St.  Rep.  3G7.  See 
Heywood  v.  Tillsou,  75  Me.  225,  46  Am.  Rep.  373. 

61  Chipley  v.  Atlcinsou,  23  Fla.  206,  1  South.  934,  11  Am.  St.  Rep.  367  (col- 
lecting cases) ;  Lally  v.  Cautwell,  40  Mo.  App.  44 ;  Wyeman  v.  Deady,  79 
Conn.  414,  65  Atl.  129,  118  Am.  St.  Rep.  152;  Brennan  v.  United  Hatters  of 
North  America,  Local  No.  17,  73  N.  J.  Law,  729,  65  Atl.  165,  9  L,  R.  A- 
(N.  S.)  254,  118  Am.  St.  Rep.  727.  An  employer's  liability  insurance  company, 
which  procures  the  discharge  of  an  employg  who  has  sued  the  insured  em- 
ployer for  personal  injury,  with  intent  to  injure  him,  Is  liable  to  such  em- 
ploy6.  Gibson  v.  Fidelity  &  Casualty  Co.,  232  111.  49,  83  N.  E.  539.  See,  also, 
London  Guarantee  &  Accident  Co.  v.  Horn,  206  111.  493,  69  N.  E.  526,  99  Am. 
St,  Rep.  185. 


540  MASTER  AND  SERVANT.  (Ch.  16 

MASTER'S   LIABILITY   TO   THIRD   PERSONS. 

278.  The  master  is  lialile  to  third  persons  on  contracts  entered  into 

by  the  servant  in  his  name,  or  on  his  behalf,  if  he  expressly  or 
impliedly  authorized  the  contract,  or  if  he  subsequently  rati- 
fied it,  but  not  otherudse. 

279.  The  master  is  liable   for  frauds  and  wrongs  committed  by  the 

servant,  if  expressly  or  impliedly  directed  or  authorized  by 
him,  or  if  committed  by  the  servant  in  the  course  of  the  em- 
ployment, but  not  otherwise.  To  render  one  liable  under  this 
rule  the  relation  must  be  that  of  master  and  servant,  and  not 
that  of  employer  and  independent  contractor. 

The  master  is  bound  by  the  act  of  his  servant,  either  in  respect 
to  contracts  or  injuries,  when  the  act  is  done  by  authority  of  the 
master.^  2  As  to  this  proposition  there  can  be  no  doubt.  But  there 
is  much  difficulty  when  we  come  to  determine  what  acts  on  the  part 
of  the  servant  are  to  be  deemed  authorized  by  the  master,  for  the 
authority  may  be  either  express  or  impHed. 

On  Contracts  by  the  Servant. 

The  habihty  of  the  mast':'r  on  contracts  entered  into  by  the  serv- 
ant depends  upon  principles  of  the  law  of  agency.  If  he  is  liable 
at  all  upon  a  contract  made  on  his  behalf  by  his  servant,  it  must 
be  either  because  he  authorized  the  servant  to  make  the  contract, 
or  ratified  it  when  made.  Without  this  there  can  be  no  liability.'^ 
The  master  is  liable,  of  course,  whenever  he  has  given  the  servant 
an  express  authority  to  contract.  He  is  also  liable  if  he  has  impli- 
edly authorized  the  servant,  as  by  holding  him  out  as  having  au- 
thority.** He  is  also  liable  if  he  ratifies  the  servant's  act  in  con- 
tracting without  authority.*' 

For  the  Servant's  Torts. 

If  the  servant  does  an  injury  fraudulently  or  wrongfully,  while  in 
the  immediate  employment  of  the  master,  and  in  the  course  of 
such  employment,  the  master,  as  well  as  the  servant,  is  liable  there- 

62  2  Kent,  Comm.  259. 

e  8  Clark,  Cout  717;  President,  etc.,  of  Mechanics'  Bank  v.  New  York  & 
N.  H.  R.  Co.,  13  N.  Y.  599. 

6  4  Clark,  Cont.  717;  Morey  v.  Webb,  58  N.  Y.  350;  Bentley  T.  Doggett,  51 
Wis.  224,  8  N.  W.  155,  37  Am.  Rep.  827. 

6  6  Clark,  Cont.  719,  and  cases  there  cited. 


§§  278-279)     master's  liability  to  third  persons.  541 

for,  even  though  the  wrongful  act  may  have  been  done  contrary  to 
the  master's  orders. ®®  And  if  an  injury  results  from  the  negli- 
gence or  want  of  skill  of  the  servant,  while  acting  within  the  scope 
of  his  employment,  the  master,  as  well  as  the  servant,  is  liable.'^ 
"In  one  sense,  where  there  is  no  express  command  by  the  master, 
all  wrongful  acts  done  by  the  servant  may  be  said  to  be  beyond  the 
scope  of  the  authority  given ;  but  the  liability  of  the  master  is 
not  determined  upon  any  such  restricted  interpretation  of  the  au- 
thority and  duty  of  the   servant.     If  the   servant  be  acting  at  the 

««2  Kent,  Comm,  259;  Limpus  v.  London  General  Omnibus  C!o.,  1  Hurl. 
&  C.  528;  Whatman  v.  Pearson,  L.  R.  3  C.  P.  422;  Jeffrey  v.  Bigelow,  13 
Wend.  (N.  Y.)  518.  28  Am.  Dec.  476;  Drew  v.  Railroad  Co.,  26  N.  Y.  49; 
Doran  v.  Tliomsen,  73  N.  J.  Law,  445,  66  Atl.  897;  Houck  v.  Chicago  &  A. 
R.  Co.,  116  Mo.  App.  559,  92  S.  W.  738;  Chicago  City  Ry.  Co.  v.  McMahon, 
103  111.  485,  42  Am.  Rep.  29;  Evans  v.  Davidson,  53  Md.  245,  36  Am.  Rep 
400 ;  Mound  City  Paint  &  Color  Co.  v.  Conlon,  92  Mo.  221,  4  S.  W.  922 ;  Har 
ris  V.  Louisville,  N.  O.  &  T.  R.  Co.  (C.  C.)  35  Fed.  116;  Driscoll  v.  Carlin 
50  N.  J.  Law,  28,  11  Atl.  482;  Lee  v.  Lord,  76  Wis.  582,  45  N.  W.  601; 
French  v.  Cresswell,  13  Or.  418,  11  Pac.  62;  Eicheugreen  v.  Railroad  Co., 
96  Tenn.  229,  34  S.  W.  219,  31  L.  R.  A.  702,  54  Am.  St.  Rep.  833.  But  see 
Andrews  v.  Green,  62  N.  H.  436.  The  fact  that  signal  torpedoes,  negligently 
placed  on  a  railroad  track  by  trainmen,  who  were  authorized  to  use  them 
in  the  management  of  the  train,  were  put  there  when  there  was  no  neces- 
sity for  doing  so,  and  contrary  to  the  rules  of  the  company,  does  not  ex- 
empt the  company  from  liability  to  one  who  is  injured  thereby.  Harrimau 
V.  Railroad  Co.,  45  Ohio  St.  11,  12  N.  E.  451,  4  Am.  St.  Rep.  507. 

6  7  Evans  v.  Davidson,  53  Md.  245,  36  Am.  Rep.  400.  In  this  case,  a  gen- 
eral farm  hand,  working  in  his  master's  cornfield,  undertook,  in  his  master's 
absence,  and  without  express  direction,  to  drive  out  a  neighbor's  cow,  which 
had  broken  into  the  field,  and,  in  doing  bo,  negligently  struck  her  with  a  stone, 
and  killed  her.  The  master  was  held  liable.  And  see  the  cases  cited  in  the 
preceding  note.  So,  where  a  master  sent  his  servant  to  do  certain  grub- 
bing, and  the  servant  set  a  fire  to  facilitate  his  work,  the  master  was  held 
liable  for  the  consequences  of  the  servant's  negligence.  Ellegard  v.  Ack- 
land,  43  Minn.  352,  45  N.  W.  715.  See,  also,  the  following  cases,  in  which 
a  master  was  held  liable  for  injuries  caused  by  the  negligence  of  his  serv- 
ant: Pike  V.  Brittan,  71  Cal.  159,  11  Pac.  890,  60  Am.  Rep.  527;  French  v. 
Cresswell,  13  Or.  418,  11  Pac.  62;  Illinois  Cent.  R.  Co.  v.  Downey,  18  111. 
259;  Scammou  v.  City  of  Chicago,  25  111.  424,  79  Am.  Dec.  334;  Andrews 
V.  Boedecker,  126  111.  605,  18  N.  E.  651,  9  Am.  St.  Rep.  649 ;  Cosgrove  v.  Og- 
den,  49  N.  Y.  255,  10  Am.  Rep.  361;  Standard  Oil  Co.  v.  Parkinson,  152  Fed. 
681,  82  C.  C.  A.  29;  Mattiugly  v.  Montgomery,  106  Md.  461,  68  Atl.  205; 
Fenefe  v.  Boston  &  M.  R.  R.,  196  Mass.  575,  82  N.  E.  705 ;  Wakefield  v.  Bos- 
ton Coal  Co.,  197  Mass.  527,  83  N.  E.  1116;  Sherwood  v.  Warner,  27  App.  D. 
C.  64,  4  L.  R.  A.  (N.  S.)  651. 


542  MASTER  AND  SERVANT.  (Ch.  16 

time  in  the  course  of  his  master's  service,  and  for  his  master's 
benefit  within  the  scope  of  his  employment,  then  his  act,  though 
wrongful  or  negligent,  is  to  be  treated  as  that  of  the  master,  al- 
though no  express  command  or  privity  of  the  master  be  shown."  ^'^ 
If  the  servant,  in  committing  the  wrong,  is  not  acting  in  the  course 
of  his  employment,  the  master  is  not  answerable,'®     The  difficulty 


68  Evans  v.  Davidson,  53  Md.  245,  36  Am.  Rep.  400.  See,  also,  Variety  Mfg. 
Co.  V.  Landaker,  129  III.  App.  030;  Usher  v.  Western  Union  Telegraph  Co., 
122  Mo.  App.  9S,  98  S.  W.  84;  Columbus  R.  Co.  v.  Woolfolk,  128  Ga.  631, 
58  S.  E.  152,  10  L.  R.  A.  (N.  S.)  1136,  119  Am.  St.  Rep.  401 ;  Lotz  v.  Harilon, 
217  Pa.  339,  60  Atl.  525,  10  L.  R.  A.  (N.  S.)  202,  118  Am.  St.  Rep.  922 ;  South 
Covington  &  C.  St.  Ry.  Co.  v.  Cleveland,  100  S.  W.  283,  30  Ky.  Law  Rep. 
1072,  11  L.  R.  A.  (N.  S.)  853;  Coal  Belt  Electric  Ry.  Co.  v.  Young,  126  111. 
App.  651.  But  an  act  done  by  a  servant,  while  engaged  in  his  master's  work, 
causing  injury  to  a  third  person,  but  not  done  for  the  purpose  of  performing 
that  work,  cannot  be  deemed  the  act  of  the  master.  Daugherty  v.  Chicago, 
M.  &  St  P.  Ry.  Co.  (Iowa)  114  N.  W.  902,  14  L.  R.  A.  (N.  S.)  590.  The  ex- 
pression, "in  the  course  of  his  employment,"  as  affecting  the  liability  of  a 
master  for  the  negligence  of  his  servants,  means  "while  engaged  in  the  serv- 
ice of  the  master,"  and  is  not  synonymous  with  "during  the  period  covered 
by  his  employment."  Slater  v.  Advance  Thresher  Co.,  97  Minn.  305,  107  N. 
W.  133. 

6  9  Stone  V.  Hills,  45  Conn.  44,  29  Am.  Rep.  635.  In  this  case  the  defend- 
ants had  ordered  their  teamster  to  deliver  a  wagon  load  of  paper  to  one  T., 
in  Glastonbury  four  miles  distant,  and  to  return,  by  way  of  Nipsic  with  a  load 
of  wood.  On  reaching  T.'s,  the  teamster  was  requested  by  T.  to  carry  the 
paper  to  Hartford,  four  and  a  half  miles  further,  and,  at  the  railway  sta- 
tion there,  to  get  some  freight  of  T.'s  and  bring  it  to  him.  The  teamster  con- 
sented, and,  while  he  was  paying  the  freight  bill  at  the  station,  the  team,  be- 
ing left  unfastened,  ran  away,  and  injured  the  plaintiff's  property.  It  was 
held  that  the  teamster  was  not  engaged  in  the  defendants'  employment  at  the 
time  of  the  Injury,  and  the  defendants  were  not  liable.  And  see  Mitchell 
v.  Crassweller,  13  C.  B.  237 ;  Sheridan  v.  Charlick,  4  Daly  (N.  Y.)  338 ;  Cava- 
uagh  V.  Dinsmore,  12  Hun  (N.  Y.)  465.  Mere  deviation  from  the  route  or- 
dered by  the  master  in  these  and  similar  cases  (running  a  boat,  for  instance) 
is  not  departure  from  the  employment.  See  Quinn  v.  Power,  87  N.  Y.  535. 
41  Am.  Rep.  392;  for  illustrations  of  injuries  caused  by  servants  when  not 
acting  in  the  course  of  their  employment,  see  Wilson  v.  Peverly,  2  N.  H.  548 ; 
Flower  v.  Railroad  Co.,  C9  Pa.  210,  8  Am.  Rep.  251 ;  Snyder  v.  Railroad  Co., 
60  Mo.  413 ;  Mali  v.  Lord.  39  N.  Y.  381,  100  Am.  Dec.  448 ;  IMtClenaghan  v. 
Brock,  5  Rich.  Law  (S.  C.)  17;  Little  Miami  R.  Co.  v.  Wetmore,  19  Ohio  St. 
110,  2  Am.  Rep.  373;  Patterson  v.  Kates  (C.  C.)  152  Fed.  481;  Younkin  v. 
Bocheford,  76  Neb.  528.  110  N.  W.  632;  Chase  v.  Kuabel,  46  Wash.  484,  90 
Pac.  642,  12  L.  R.  A.  (N.  S.)  1155.  The  fact  that  the  servant  in  committing 
the  tort  in  connection  with  his  own  affairs  uses  facilities  afforded  by  thfr 


§§  278-279)     master's  liability  to  third  persons.  543 

is  in  determining,  in  particular  cases,  whether  the  servant  was  or 
was  not  so  acting.  The  test  of  a  master's  responsibility  for  the  act 
of  his  servant  is  whether  the  act  was  done  in  the  prosecution  of 
the  master's  business,  not  whether  it  was  done  in  accordance  with 
the  instructions  of  the  master  to  the  servant/"  When,  therefore,  the 
servant,  while  engaged  in  the  prosecution  of  the  master's  business, 
deviates  from  his  instructions  as  to  the  manner  of  doing  it,  this 
does  not  relieve  the  master  from  liability  for  his  acts.''^ 

In  McAIanus  v.  Crickett,^^  ^  leading  English  case,  it  was  held, 
in  substance,  that  the  master  is  not  liable  for  an  injury  willfully 
committed  by  his  servant  while  engaged  in  the  master's  business, 
without  the  direction  or  assent  of  the  master.  In  that  case  it  was 
held  that  a  master  was  not  liable  in  trespass  for  the  willful  act  of 
his  servant  in  driving  the  master's  carriage  against  another  without 
the  master's  direction  or  assent.  Lord  Kenyon  said  that  when  the 
servant  quitted  sight  of  the  object  for  which  he  was  employed, 
and,  without  having  in  view   his  master's  orders,  pursued  the  ob- 

relation  of  master  and  servant  does  not  render  the  master  liable.  St.  Louis 
Southwestern  Ry.  Co.  v.  Harvey,  144  Fed.  806,  75  C.  C.  A.  536;  Louisville 
&  N.  R.  Co.  V.  Gillen,  166  Ind.  321,  76  N.  E.  1058 ;  Slater  v.  Advance  Thresher 
Co.,  97  Minn.  305,  107  N.  W.  133. 

TOHogle  v.  H.  H.  Franklin  Mfg.  Co.  (Sup.)  305  N.  Y.  Supp.  1094;  Clark 
V.  Koehler,  46  Hun  (N.  Y.)  536;  Gregory's  Adm'r  v.  Ohio  River  l^,  Co.,  37 
W.  Va.  006,  16  S.  E.  819. 

TiCosgrove  v.  Ogden,  49  N.  Y.  255,  10  Am.  Rep.  361.  It  was  said  in  this 
case:  "If  the  owner  of  a  building  employs  a  servant  to  remove  the  roof  from 
his  house,  and  directs  him  to  throw  the  materials  upon  his  lot,  where  no  one 
would  be  endangered,  and  the  servant,  disregarding  this  direction,  should 
carelessly  throw  them  into  the  street,  causing  an  Injury  to  a  passenger,  the 
master  would  be  responsible  therefor,  although  done  in  violation  of  his  in- 
structions, because  it  was  done  in  the  business  of  the  master.  But  should 
the  servant,  for  some  purpose  of  his  own,  intentionally  throw  material  upon 
a  passenger,  the  master  would  not  be  responsible  for  the  injury  because  it 
would  not  be  an  act  done  in  his  business,  but  a  departure  therefrom  by  the 
servant,  to  effect  some  purpose  of  his  own."  In  Garretzen  v.  Duenckel,  50 
Mo.  104,  a  clerk  in  the  gun  store,  while  engaged  during  the  proprietor's  ab- 
sence, in  exhibiting  a  gun  to  a  customer,  loaded  it,  contrary  to  the  proprie- 
tor's orders.  In  doing  so,  it  was  accidentally  discharged,  and  shot  and  wound- 
ed a  person  on  the  opposite  side  of  the  street.  The  proprietor  was  held  re- 
sponsible. See,  also.  Grant  v.  Singer  Mfg.  Co.,  190  Mass.  489,  77  N.  E.  480,  6 
L.  R.  A.  (N.  S.)  567,  and  Sharp  v.  Erie  R.  Co.,  184  N.  Y.  100,  76  N.  E.  923, 
where  the  servant  disregarded  the  master's  orders. 

72  1  East.  106. 


544  MASTER  AND   SERVANT.  (Ch.  16 

ject  which  his  own  malice  suggested,  he  no  longer  acted  in  pur- 
suance of  the  authority  given  him,  and  it  was  deemed,  so  far,  a 
willful  abandonment  of  his  master's  business.  This  doctrine  is  very 
generally  recognized  in  this  country,  but  the  courts  do  not  always 
agree  in  applying  it  to  particular  cases/'  If  the  act  for  which  it 
is  sought  to  hold  the  master  liable  was  in  fact  done  by  the  serv- 
ant in  the  course  of  his  employment,  the  fact  that  he  acted  will- 
fully and  maliciously  will  not  prevent  liability  from  attaching  to 
the  master.  As  was  said  by  the  Ohio  court:  "Where  a  person  is 
injured  by  the  act  of  a  servant,  done  in  the  course  of  his  employ- 
ment, we  see  no  good  reason  why  the  motive  or  intention  of  the 
servant  should  operate  to  discharge  the  master  from  liability.  If 
the  nature  of  the  injurious  act  is  such  as  to  make  the  master  liable 
for  its  consequences,  in  the  absence  of  the  particular  intention,  it 
is  not  perceived  how  the  presence  of  such  intention  can  be  held 
to  excuse  the  master."  ^*  It  has  repeatedly  been  held  that  if  the 
conductor  or  other  employes  on  a  railroad  train  or  on  a  boat  unlaw- 
fully assault  and  injure  a  passenger,  or  even  a  trespasser,  the  rail- 
road company  or  owner  of  the  boat  is  liable,  notwithstanding  the 
servant  acted  willfully  and  from  personal  and  malicious  motives." 

T 8  Foster  v.  Bank,  17  Mass.  508,  9  Am.  Dec.  168;  Wright  v.  Wilcox,  19 
Wend.  (N.  Y.)  343,  32  Am.  Dec.  507 ;  Vanderbilt  v.  Turnpike  Co.,  2  N.  Y.  479, 
51  Am.  Dec.  315;  Eraser  v.  Freeman,  43  N.  Y.  566,  3  Am.  Rep.  740;  Isaacs 
V.  Railroad  Co.,  47  N.  Y.  122,  7  Am.  Rep.  418 ;  Cox  v.  Keahey,  36  Ala.  340,  76 
Am.  Dec.  325 ;  New  Orleans,  J.  &  G.  N.  R.  Co.  v.  Harrison,  48  Miss.  112,  12  Am. 
Rep.  356;   Tuller  v.  Voght,  13  111.  277;    Oxford  v.  Peter,  28  111.  434. 

7  4  Passenger  R.  Co.  v.  Young,  21  Ohio  St.  518,  8  Am.  Rep.  78. 

7  6  Passenger  R.  Co.  v.  Young,  21  Ohio  St.  518,  8  Am.  Rep.  78;  Bryant  v. 
Rich,  106  Mass.  180,  8  Am.  Rep.  311 ;  Sberley  v.  Billings,  8  Bush  (Ky.)  147, 
8  Am.  Rep.  451;  Rounds  v.  Railroad  Co.,  64  N.  Y.  129,  21  Am.  Rop.  597; 
Shea  V.  Railroad  Co.,  62  N.  Y.  180,  20  Am.  Rep.  480;  Higgins  v.  Railroad 
Co.,  46  N.  Y.  23,  7  Am.  Rep.  293;  Hoffman  v.  Railroad  Co.,  87  N.  Y.  25,  41 
Am.  Rep.  337;  Dwinelle  v.  Railroad  Co.,  120  N.  Y.  117,  24  N.  E.  319,  8  L. 
R.  A.  224,  17  Am.  St.  Rep.  611 ;  Chicago  &  E.  R.  Co.  v.  Flexman,  103  111  546, 
42  Am.  Rep.  33 ;  North  Chicago  City  Ry.  Co.  v.  Gastka,  128  111.  613,  21  N.  E. 
522,  4  Ll  R.  A.  481;  Goddard  v.  ILaihvay  Co.,  57  Me.  202,  2  Am.  Rep.  39; 
Hanson  v.  Railway  Co.,  62  Me.  84,  16  Am.  Rep.  404;  McKiuley  v.  Railroad 
Co.,  44  Iowa,  314,  24  Am.  Rep.  748 ;  New  Orleans,  St.  L.  &  a  R.  Co.  v.  Burke, 
53  Miss.  200,  24  Am.  Rep.  089;  Philadelphia,  W.  &  B.  R.  Co.  v.  Larkiu,  47 
Md.  155,  28  Am.  Rep.  442;  Carter  v.  Railway  Co.,  98  Ind.  552.  In  Craker  v. 
Railway  Co.,  36  Wis.  657,  17  Am.  Rep.  504,  a  railroad  company  was  held 
liable  where  its  conductor  kissed  a  female  passenger  against  her  will.  In 
Isaacs  V.  Railroad  Co.,  47  N.  Y.  122,  7  Am.  Rep.  418,     the  plaintiff,  while 


§§  278-279)      master's  liability  to  third  persons.  .545 

His  conduct  is  none  the  less  in  the  course  of  his  employment  be- 
cause of  his  motive.  The  rule  would  be  different  if  the  conductor 
or  brakeman  on  a  railroad  train  should  willfully  and  maliciously  as- 
sault or  otherwise  injure  a  mere  stranger,  to  whom  the  company 
owed  no  duty  at  all/"  or  if  the  tortious  act  was  committed  while 
the  servant  was  not  on  duty.'^'' 

A  railroad  company  has  been  held  liable  for  injuries  caused  by 
the  wrongful  act  of  its  locomotive  engineer  in  blowing  the  whistle, 
or  allowing  steam  to  escape,  and  thereby  frightening  horses,  though 
he  acted  willfully  and  maliciously.'^" 

Relation  of  Master  and  Servant  must  Exist. 

The  person  by  whom  the  injury  was  caused  must  have  been  the 
servant  of  the  person  whom  it  is  sought  to  charge,  and  in  his  em- 
ploy, at  the  time  of  the  injury.'^*     It  is  not  enough,  in  order  to 


a  passenger  on  a  street  car,  and  wishing  to  alight,  passed  out  upon  the  plat- 
form, and  asked  the  conductor  to  stop  the  car,  telling  him  she  would  not  get 
out  until  the  car  should  come  to  a  full  stop.  The  conductor  thereupon,  while 
the  car  was  in  motion,  threw  her  from  the  car  with  great  violence,  break- 
ing her  leg.  It  was  held  that  this  was  a  wanton  and  willful  trespass,  for 
which  the  company  was  not  liable.  This  case  was  severely  criticised,  and 
has  been,  in  effect,  overruled  by  the  later  New  York  cases.  See  Hoffman  v. 
Railroad  Co.,  87  N.  Y.  25,  41  Am.  Rep.  337 ;  Dwinelle  v.  Railroad  Co.,  120  N. 
Y.  117,  24  N.  B.  319,  8  L.  R.  A>  224,  17  Am.  St.  Rep.  611 ;  Shea  v.  Railroad 
Co.,  62  N.  Y.  180,  20  Am.  Rep.  480. 

76  Chicago  &  E.  R.  Co.  v.  Flexman,  103  111.  546,  42  Am.  Rep.  33;  New 
Orleans,  J.  &  G.  N.  R.  Co.  v.  Harrison,  48  Miss.  112,  12  Am.  Rep.  356 ;  Marion 
v.  Railroad  Co.,  59  Iowa,  428,  13  N.  W.  415,  44  Am.  Rep.  687 ;  Central  Ry.  Co. 
V.  Peacock,  69  Md.  257,  14  Atl.  709,  9  Am.  St.  Rep.  425;  Williams  v.  Car 
Co.,  40  La.  Ann.  87,  3  South.  631,  8  Am.  St.  Rep.  512. 

7  7  St.  Louis  &  S.  F.  R.  Co.  v.  Wyatt,  84  Ark.  193,  105  S.  W.  72.  See,  also. 
Southern  Ry.  Co.  v.  Power  Fuel  Co.,  where  the  servant  while  off  duty  was 
guilty  of  negligence. 

7  8  Toledo,  W.  &  W.  Ry.  Co.  v.  Harmon,  47  111.  298,  95  Am.  Dec.  489;  Chica- 
go, B.  &  Q.  R.  Co.  v.  Dickson,  63  111.  151,  14  Am.  Rep.  114;  Nashville  &  C. 
R,  Co.  V.  Starnes,  9  Heisk.  (Teun.)  52,  24  Am.  Rep.  296. 

7  9  See  Sawyer  v.  Martins,  25  111.  App.  521;  Sexton  v.  New  York  Cent.  & 
H.  R.  R.  Co.,  114  App.  Div.  678,  99  N.  Y.  Supp.  1111 ;  Marsh  v.  Hand,  120  N. 
Y.  315,  24  N.  E.  463.  "It  is  not  necessary  that  he  should  be  shown  to  have 
been  in  the  general  employment  of  the  defendant,  nor  that  he  should  be 
under  any  special  engagement  of  service  to  him,  or  entitled  to  receive  com- 
pensation from  him  directly.  It  is  enough  that  at  the  time  of  the  accident 
he  was  in  charge  of  the  defendant's  property  by  his  assent  and  authority, 
engaged  in  his  business,  and,  in  respect  to  that  property  and  business,  un- 
TIFP.P.&  D.Rel.(2d  Ed.)— 35 


546  MASTER  AND   SERVANT.  (Ch.  16 

establish  a  liability  of  one  person  for  the  negligence  of  another, 
to  show  that  the  person  whose  negligence  caused  the  injury  was 
at  the  time  acting  under  an  employment  by  the  person  who  is  sought 
to  be  charged.  It  must  be  shown,  in  addition,  that  the  employ- 
ment was  of  such  a  character  as  to  create  the  relation  of  master 
and  servant  between  them.  "Unless  the  relation  of  master  and 
servant  exists,  the  law  will  not  impute  to  one  person  the  negli- 
gent act  of  another."  ^°  As  has  heretofore  been  pointed  out,  a  mere 
volunteer  may,  by  assisting  the  servants  of  another  in  the  service 
of  the  master,  either  at  the  request  or  without  the  request  of  such 
servants,  stand  in  the  relation  of  a  servant  for  the  time  being, 
and  may  be  regarded  as  assuming  all  the  risks  incident  to  the 
business.*^  Whether  or  not  such  a  volunteer  becomes  a  servant, 
so  that  the  master  of  the  other  servants  will  be  liable  for  his  wrong- 

der  his  control.  The  fact  that  there  is  an  Intermediate  party,  in  whose  gen- 
eral employment  the  person  whose  acts  are  in  question  is  engaged,  does  not 
prevent  the  principal  from  being  held  liable  for  the  negligent  conduct  of  the 
subagent  or  underservaut,  unless  the  relation  of  such  intermediate  party  to 
the  subject-matter  of  the  business  in  which  the  underservaut  is  engaged  be 
such  as  to  give  him  exclusive  control  of  the  means  and  manner  of  its  ac- 
complishment, and  exclusive  direction  of  the  persons  employed  therefor." 
Kimball  v.  Cushman,  103  Mass.  194,  4  Am.  Rep.  528.  And  see  Ewan  v.  Lip- 
pincott,  47  N.  J.  Law,  192,  54  Am.  Rep.  148;  Houseman  v.  Philadelphia 
Transportation  &  Lighterage  Co.  (C.  C.)  141  Fed.  385,  If  the  master  hires  the 
services  of  his  servant  to  another  temporarily,  but  retains  control,  he  re- 
mains the  master,  and  is  liable  for  the  acts  of  the  servant  in  the  course  of 
the  employment;  and  it  can  make  no  difference  that  the  services  of  this 
particular  servant  were  requested  by  the  third  party.  This  question  arises 
where  a  person  hires  a  team  from  another,  together  with  the  driver.  Ordi- 
narily, the  driver  remains  the  servant  of  the  owner  of  the  team.  See  Quar- 
man  v.  Burnett,  6  Mees.  &  W.  499 ;  Joslin  v.  Ice  Ca,  50  Mich.  516,  15  N.  W. 
887,  45  Am.  Rep.  54;  Frerker  v.  Nicholson  (Colo.)  92  Pac.  224,  13  L.  R.  A. 
(N.  S.)  1122 ;  Blake  v.  Ferris,  5  N.  Y.  48,  55  Am.  Dec.  304 ;  Norris  y.  Kohler, 
41  N.  Y.  42 ;  Crockett  v.  Calvert,  8  Ind.  127 ;  Huff  v.  Ford,  126  Mass.  24,  30 
Am.  Rep.  645;  Hershberger  v.  Lynch  (Pa.)  11  Atl.  642;  Muse  v.  Stern,  82 
Va,  33,  3  Am.  St.  Rep.  77, 

8  0  King  v.  Railroad  Co.,  66  N.  Y,  181,  23  Am.  Rep.  37;  Bassi  v.  Orth,  58 
Misc.  Rep.  372,  109  N.  Y.  Supp.  88 ;  Parker  v.  Seasongood  (C.  C.)  152  Fed.  583. 
The  test  of  one's  liability  for  the  negligent  act  or  omission  of  his  alleged 
servant  is  his  right  and  power  to  command  and  control  his  imputed  agent 
in  the  performance  of  the  causal  act  or  omission  at  the  very  instant  of  the 
performance  or  neglect  Standard  Oil  Co.  v.  Parkinson,  152  Fed.  681,  82  C. 
0.  A.  29. 

81  Ante,  p.  526. 


II 


§§  278-279)      master's  liability  to  third  persons.  54T 

ful  acts  or  negligence  in  the  course  of  the  employment,  must  de- 
pend upon  the  authority  of  the  other  servants  to  thus  employ  as- 
sistance. If  they  had  such  authority,  express  or  implied,  the  master 
is  liable;    otherwise  he  is  not.** 

Independent  Contractors. 

There  is  a  wide  difference  between  a  servant  and  an  independ- 
ent contractor.  If  a  person  contracts  with  another,  who  is  engaged 
in  an  independent  employment,  for  the  doing  of  certain  work  by 
the  latter,  but  does  not  personally  interfere  or  give  directions  re- 
specting the  manner  of  the  work,  the  relationship  of  master  and 
servant  does  not  exist,  but  the  party  employed  is  an  independent 
contractor.  "If  one  renders  service,  in  the  course  of  an  occupa- 
tion, representing  the  will  of  his  employer  only  as  to  the  result  of 
his  work,  and  not  as  to  the  means  by  which  it  is  accomplished,  it 
is   an   independent   employment."  *'      The    fact   that   the    contractor 


82  See  Althorf  v.  Wolfe,  22  N.  Y.  355;  Tliyssen  v.  Davenport  Ice  &  Cold 
Storage  Co.,  134  Iowa,  749,  112  N.  W.  177,  13  L.  R.  A.  (N.  S.)  572;  Cooper 
V.  Lowery,  4  Ga.  App.  120,  60  S.  E.  1015.  But  he  may  be  liable  for  the  neg- 
ligence of  the  servant  in  permitting  the  stranger  to  assist  him.  Thyssen  v. 
Davenport  Ice  &  Cold  Storage  Co.,  134  Iowa,  749,  112  N.  W.  177,  13  L.  R.  A. 
(N.   S.)  572. 

8  3  Harrison  v.  Collins,  86  Pa.  153,  27  Am.  Rep.  G99.  And  see  Hilliard  v. 
Richardson,  3  Gray  (Mass.)  349,  63  Am.  Dec.  743;  Blake  v.  Ferris,  5  N.  Y. 
48,  55  Am.  Dec.  304;  Pack  v.  Mayor,  etc.,  8  N.  Y.  222;  King  v.  Railroad 
Co.,  66  N.  Y.  181,  23  Am.  Rep.  37 ;  Marsh  v.  Hand,  120  N.  Y.  315,  24  N.  E.  463 ; 
Metzinger  v.  New  Orleans  Board  of  Trade,  120  La.  124,  44  South.  1007 ;  Wil- 
mot  V.  McPadden,  79  Conn.  367,  65  Atl.  157;  McIIarge  v.  M.  M.  Newcomer 
&  Co.,  117  Tenn.  595,  100  S.  W.  700,  9  L.  R.  A.  (N.  S.)  298 ;  Scammon  v.  City 
of  Chicago,  25  111.  424,  79  Am.  Dec.  334;  Holleubeck  v.  Winnebago  Co.,  95 
111.  148,  35  Am.  Rep.  151;  Kepperly  v.  Ramsden,  83  111.  354;  Schwartz  v. 
Gilmore,  45  111.  455,  92  Am.  Dec.  227;  Moore  v.  Sanborne,  2  Mich.  519,  59 
Am.  Dec.  209 ;  Barry  v.  City  of  St  Louis,  17  Mo.  121 ;  Powell  v.  Construc- 
tion Co.,  88  Tenn.  692,  13  S.  W.  691,  17  Am.  St.  Rep.  925.  WTiether  a  person 
employed  to  do  certain  work  is  to  be  regarded  as  a  servant  or  as  an  inde- 
pendent contractor  depends  mainly  upon  whether,  under  the  contract,  the 
employer  retains  the  power  of  directing  and  controlling  the  work.  Where 
the  employe  is  put  in  exclusive  possession,  and  has  exclusive  control,  furnish- 
ing his  own  assistants,  and  executing  the  work  in  detail,  clear  of  any  super- 
vision, he  is  an  independent  contractor.  It  is  otherwise  if  the  employer  retains 
the  direction  and  control  of  the  work.  Johnson  v.  Western  &  A.  R.  Co.,  4 
Ga.  App.  131,  60  S.  E.  1023;  Kampmann  v.  Rothwell  (Tex.  Civ.  App.)  107  S. 
W.  120;  and  cases  above  cited.  Or  if  the  work  is  done  according  to  the  di- 
rection of,  or  specifications  funished  by,  the  employer.     Hedstrom  v.  Union 


548  MASTER  AND  SERVANT.  (Ch.  16 

is  paid  by  the  day  does  not  necessarily  destroy  the  independent 
character  of  the  employment.** 

It  is  well  settled,  both  in  England  and  in  this  country,  that  a 
person  who  employs  an  independent  contractor  to  do  work  for  him 
is  not  liable  for  the  wrongful  acts  or  neglect  of  the  contractor  or 
his  servants  in  the  performance  of  the  work,  where  the  work  to 
be  done  under  the  contract  is  lawful. *°  In  Harrison  v.  Collins  ^^ 
the  defendants,  owners  of  a  sugar  refinery,  had  employed  a  rigger 
to  remove  machinery  from  a  railroad  car  to  their  refinery.  In 
doing  the  work  he  opened  a  coal  hole  in  the  sidewalk,  and  left  it 
open  a  few  minutes  after  finishing  the  work,  and  a  child  fell  into 
it  and  was  injured.  It  appeared  that  the  defendants  neither  direct- 
ed nor  interfered  with  the  manner  of  the  work,  and  it  was  there- 
for held  that,  as  the  rigger  was  an  independent  contractor,  they  were 
not  liable  for  the  injury.  On  the  same  principle,  it  has  been  held 
that  one  who  employs  a  public,  licensed  drayman  to  haul  a  lot  of 

Trust  Co.  (Cal.  App.)  94  Pac.  386;  Kansas  City,  M.  &  O.  Ry.  Co.  v.  Loosley, 
76  Kan.  103,  90  Pac.  990.  In  Harrison  v.  Collins,  86  Pa.  153,  27  Am.  Rep.  699, 
the  owners  of  a  sugar  refinery  employed  a  rigger  to  remove  machinery  from 
a  railroad  car  to  their  refinery ;  but,  though  they  paid  lilm  by  the  day,  they 
neither  interfered  with  nor  directed  the  manner  of  the  work.  It  was  held  that 
the  rigger  was  an  independent  contractor,  and  not  a  servant.  Among  other 
employes  who  have  been  held  to  be  independent  contractors  may  be  mentioned: 
A  public  licensed  drayman,  employed  to  haul  goods,  De  Forrest  v.  Wright,  2 
Mich.  368;  a  contractor  employed  to  erect  a  building,  Hilliard  v.  Richardson, 
3  Gray  (Mass.)  349,  63  Am.  Dec.  743;  a  plumber  employed  to  repair  water 
pipes,  Bennett  v.  Truebody,  66  Cal.  509,  6  Pac.  329,  56  Am.  Rep.  117;  con- 
tractor employed  by  railroad  company  to  build  road,  or  to  grade,  Louisville, 
N.  O.  &  T.  R.  Co.  V.  Conroy,  63  Miss.  562,  56  Am.  Rep.  835.  A  person  em- 
ployed by  a  railroad  company  to  clear  off  and  burn  brush  and  rubbish  from 
its  right  of  way,  at  a  certain  sum  per  mile,  who  hires,  pays,  and  controls  his 
own  help,  is  not  a  servant  of  the  company,  but  an  independent  contractor.  St. 
Louis,  I.  M.  &  S.  Ry.  Co.  v.  Yonley  (Ark.)  13  S.  W.  333. 

84  Harrison  v.  Collins,  86  Pa.  153,  27  Am.  Rep.  699;  Forsyth  v.  Hooper,  11 
Allen  (Mass.)  419 ;   Corbin  v.  American  Mills,  27  Conn.  274,  71  Am.  Dec.  63. 

85  Reedie  v.  Railway  Co.,  4  Exch.  244;  Harrison  v.  Collins,  86  Pa.  153,  27 
Am.  Rep.  699 ;  Cufl!  v.  Railroad  Co.,  35  N.  J.  Law,  17,  10  Am.  Rep.  205 ;  Hil- 
liard V.  Richardson,  3  Gray  (Mass.)  349,  63  Am.  Dec.  743;  King  v.  Rail- 
road Co.,  66  N.  Y.  181,  23  Am.  Rep.  37 ;  Blake  v.  Ferris,  5  N.  Y.  48,  55  Am. 
Dec.  304;  Stevens  v.  Armstrong,  6  N.  Y.  435;  Hexamer  v.  Webb,  101  N. 
Y.  377,  4  N.  E.  755,  54  Am.  Rep.  703;  Eaton  v.  Railway  Co.,  59  Me.  520,  8 
Am.  Rep.  430;  De  Forrest  v.  Wright,  2  Mich.  368;  Clark  v.  Railroad  Co., 
28  Vt.  103 ;    Bennett  v.  Truebody,  06  Cal.  509,  6  Pac.  329,  56  Am.  Rep.  117. 

8  6  86  Pa.  153,  27  Am.  Rep.  699. 


§§  278-279)      master's  liability  to  third  persons.  549 

barrels  of  goods  is  not  liable  for  injuries  inflicted  by  the  latter  by 
rolling  a  barrel  against  a  person.^^  And  the  owner  of  land,  who 
employs  an  independent  contractor  to  erect  or  repair  a  building  on 
his  lot,  is  not  liable  for  injuries  resulting  from  the  contractor's  de- 
posit of  planks  in  the  highway,  or  other  negligence  on  the  part  of 
the  contractor  or  his   servants.** 

If  the  work  contracted  for  is  unlawful,  as  where  it  naturally 
constitutes  or  creates  a  public  nuisance,  then  the  rule  exempting 
the  employer  does  not  apply,  but  both  the  employer  and  the  con- 
tractor are  liable  for  injuries  resulting  therefrom.*®  Thus,  if  a 
person  who  is  not  authorized  to  excavate  in  a  highway  employs  a 
contractor  to  do  so,  he  is  liable  for  injuries  inflicted  by  the  con- 
tractor in  doing  the  work,  though  he  would  not  be  so  liable  if  he 
had  first  obtained  a  license  to  excavate.®" 

Nor  does  the  rule  apply  where  a  public  duty  is  imposed  by  law 
upon  a  public  officer  or  public  body,  and  the  officer  or  body  charged 
with  the  duty  commits  its  performance  to  another.  For  instance, 
a  municipal  corporation  charged  by  statute  with  the  duty  to  keep 
the  streets  in  repair  cannot  escape  liability  for  a  negligent  perform- 
ance of  this  duty  on  the  ground  that  the  immediate  negligence  was 
that  of  a  contractor  who  had  been  intrusted  with  its  performance.'^ 


87  De  Forrest  v.  Wright,  2  Mich.  368. 

88  Hilliard  v.  Richardson,  3  Gray  (Mass.)  349,  63  Am.  Dec.  743;  McCarthy 
V.  Second  Parish,  71  Me.  318,  36  Am.  Rep.  320;  Forsyth  v.  Hooper,  11  Allen 
(Mass.)  419 ;  Pearson  v.  Cox,  2  C.  P.  Div.  369. 

ssCongreve  v.  Smith,  18  N.  Y.  79;  Creed  v.  Hartmann,  29  N.  Y.  591,  86 
Am.  Dec.  341;  Falender  v.  Blackwell,  39  Ind.  App.  121,  79  N.  E.  393; 
McHarge  v.  M.  M.  Newcomer  &  Co.,  117  Tenn.  595,  100  S.  W.  700,  9  L.  R.  A. 
(N.  S.)  298. 

»o  Creed  v.  Hartmann,  29  N.  Y.  591,  86  Am.  Dec.  341.  But  if  the  inde- 
pendent contractor  is  himself  guilty  of  the  unlawful  act,  without  the  knowl- 
edge or  authority  of  the  employer,  the  latter  Is  not  liable.  Symons  v.  Road 
Directors  for  Allegany  County,  105  Md.  254,  65  Atl.  1067. 

91  King  V.  Railroad  Co.,  66  N.  Y.  181,  23  Am.  Rep.  37;  Storrs  v.  City  of 
Utica,  17  N.  Y.  104,  72  Am.  Dec.  437. 


550  MASTER  AND  SERVANT.  (Ch.  16 


SERVANT'S   UABILITY  TO   THIRD   PERSONS. 

280.  A  servant  is  not  personally  liable  to  third  persons  on  contracts 

made  by  him  in  the  name  or  on  behalf  of  the  master,  unless  he 
failed  to  disclose  the  existence  of  his  principal,  or  contracted  • 
\7ithont  authority. 

281.  A   servant  is    ordinarily  personally  liable   to   third  persons   for 

torts  committed  by  him,  though  committed  by  his  master's  di- 
rection. But  he  is  not  liable  to  third  persons  for  mere  non- 
feasance. 

Ordinarily  a  servant  is  not  personally  liable  on  authorized  con- 
tracts entered  into  by  him  in  the  name  of  his  master,  or  on  his 
behalf."*  It  is  otherwise  if  he  contracts  without  disclosing  either 
his  agency,"^  or  if  he  exceeds  his  authority."*  The  liability  de- 
pends upon  principles  of  the  law  of  agency,  and  is  not  different  from 
the  liability  of  any  other  agent. 

A  servant  is  liable  for  criminal  acts  committed  by  him,  though 
his  master  may  have  commanded  him  to  commit  them.  In  such  a 
case  both  would  be  liable.  In  like  manner  a  servant,  as  well  as  the 
master,  is  civilly  liable  for  a  tort  committed  by  the  servant  by 
the  master's  command.  "Although  there  are  some  cases  which  fa- 
vor the  idea  that  a  servant  is  not  liable  for  a  wrong  act,  when  done 
by  order  of  his  master,  these  cases,  I  apprehend,  are  not  law.  The 
idea  that  a  command  by  a  superior  is  to  be  admitted  as  a  justifica- 
tion for  an  injury  is  admissible  only  in  the  case  of  a  wife  who  does 
an  injury  by  the  command  and  in  the  company  of  her  husband.  A 
servant  is  bound  to  perform  the  lawful  commands  of  his  master,  but 
not  those  which  are  unlawful.  Such  a  principle  would  justify  a  serv- 
ant in  committing  any  crime.  Even  if  the  servant  be  ignorant  that 
he  is  committing  any  injury,  yet,  if  the  thing  done  is  an  injury, 
he  is  liable,  though  done  by  the  command  of  the  master."  »''     The 

92  Clark,  Cont.  737;  Jefts  v.  York,  4  Cush.  (Mass.)  371,  50  Am.  Dec.  791; 
Bailey  v.  Cornell,  66  Mich.  107,  33  N.  W.  50. 

93  Clark,  Cont.  740,  742,  and  cases  there  cited ;  Kayton  v.  Barnett,  116  N. 
y.  625,  23  N.  E.  24;  Holt  v.  Ross,  54  N.  Y.  472,  13  Am.  Rep.  615;  Wheeler 
V.  Reed,  36  111.  81 ;  Porter  v.  Day.  44  111.  App.  256 ;  Hubbard  v.  Ten  Brook, 
124  Pa.  291,  16  Atl.  817,  2  D.  R.  A.  823,  10  Am.  St.  Rep.  585 ;  Welch  v.  Good- 
win, 123  Mass.  71,  25  Am.  Rep.  24. 

9  4  Clark,  Cont.  738,  and  cases  there  cited- 
9  6  Reeve,  Dom.  Rel.  (4th  Ed.)  455. 


§§  280-281)      servant's  liability  to  third  persons.  551 

servant  is  not  personally  liable  to  third  persons  for  mere  nonfea- 
sance. In  such  a  case  he  is  liable  to  the  master,  and  the  master 
alone  is  liable  to  third  persons.*'  But  for  negligence,  as  distinguish- 
ed from  mere  nonfeasance,  the  servant  is  personally  liable,"^ 

86  Delaney  v.  Rochereau,  34  La.  Ann.  1123,  44  Am.  Rep.  456;  Scheller  v. 
Silbermintz,  50  Misc.  Rep.  175,  98  N.  Y.  Supp.  230;  McGinnis  v.  Chicago,  R. 
I.  &  P.  Ry.  Ck).,  200  Mo.  347,  98  S.  W.  590,  9  L.  R.  A.  (N.  S.)  880,  118  Am.  St. 
Rep.  661 ;  Carey  v.  Rochereau  (O.  C.)  16  Fed.  87 ;  AJbro  v.  Jaquith,  4  Gray 
(Mass.)  99,  64  Am.  Dec.  56.  But  this  case  was  afterwards  overruled  in  Os- 
borne V.  Morgan,  130  Mass.  102,  39  Am.  Rep.  437,  on  the  ground  that  the  facts 
did  not  bring  it  within  the  principle.  The  principle  itself,  however,  was  con- 
ceded in  the  latter  case. 

97  Osborne  v.  Morgan,  130  Mass.  102,  39  Am.  Rep.  437.  It  was  held  in  this 
case,  overruling  Albro  v.  Jaquith,  4  Gray  (Mass.)  99,  64  Am.  Dec.  56,  that  a 
servant  is  personally  liable  to  a  third  person  for  negligence  in  so  placing  ap- 
pliances as  to  cause  injury  to  him.  The  case  overruled  had  erroneously  held 
that  a  servant  was  not  liable  for  unskillfully  and  negligently  allowing  in- 
flammable gas  to  escape.  In  Osborne  v.  Morgan,  the  court,  by  Gray,  C.  J., 
said:  "It  is  often  said  in  the  books  that  an  agent  is  responsible  to  third  per- 
sons for  misfeasance  only,  and  not  for  nonfeasance.  And  it  is  doubtless  true 
that  if  an  agent  never  does  anything  towards  carrying  out  his  contract  with 
his  principal,  but  wholly  omits  and  neglects  to  do  so,  the  principal  is  the  only 
person  who  can  maintain  any  action  against  him  for  the  nonfeasance.  But,  if 
the  agent  once  actually  undertakes  and  enters  upon  the  execution  of  a  par- 
ticular work,  it  is  his  duty  to  use  reasonable  care  in  the  manner  of  execut- 
ing it,  so  as  not  to  cause  any  injury  to  third  persons  which  may  be  the  natural 
consequence  of  his  acts;  and  he  cannot,  by  abandoning  its  execution  mid- 
way, and  leaving  things  in  a  dangerous  condition,  exempt  himself  from  lia- 
bility to  any  person  who  suffers  injury  by  reason  of  his  having  so  left  them 
without  proper  safeguards.  This  is  not  nonfeasance;  but  it  is  misfeasance, 
doing  improperly."  And  see  Parsons  v.  Winchell,  5  Cush.  (Mass.)  592,  52  Am. 
Dec.  745 ;  Bell  v.  Josselyn,  3  Gray  (Mass.)  309,  63  Am.  Dec.  741 ;  Nowell  v. 
Wright,  3  Allen  (Mass.)  106,  80  Am.  Dec.  62;  Horner  v.  Lawrence,  37  N.  J. 
Law,  46 ;  Hinds  v.  Overacker,  66  Ind.  547,  32  Am.  Rep.  114 ;  Mayberry  v.  North- 
ern Pac.  Ry.  Co.,  100  Minn.  79,  110  N.  W.  356,  12  L.  R.  A.  (N.  S.)  675 ;  South- 
ern Ry.  Co.  V.  Reynolds,  126  Ga.  657,  55  S.  E.  1039;  Whalen  v.  Pennsylvania 
R.  Co.,  73  N.  J.  Law,  192,  63  Atl.  993  ;  McGinnis  v.  Chicago,  R.  I.  &  P.  Ry. 
Co.,  200  Mo.  347,  98  S.  W.  590,  9  L.  R.  A.  (N.  S.)  880,  118  Am.  St  Rep.  6G1; 
Scheller  t.  Silbermintz,  50  Misc.  Rep.  175,  98  N.  Y.  Supp.  230. 


TABLE  OF  CASES  CITED. 


[THE    FIGURES    REFER   TO    PAGES.! 


A.  V.  B.,  27. 

Aaron  v.  Harley,  400. 

Abbe  V.  Abbe,  73. 

Abbot  V.  Bayley,  117. 

Abbott  V.  Abbott,  57,  73,  74. 

V.  Ck)nverse,  259,  2&4,  285,  308. 
V.  Creal,  447. 
Abel  V.  President,  etc,  D.  &  H.  C.  Co., 

516. 
Abies  V.  Abies,  104. 
Abrahams   v.   Kidney,   297,   300,  302, 

303. 
Abrams  v.  United  States  Fidelity  & 

Guaranty  Co.,  333,  348. 
Achilles  v.  Achilles,  173,  174. 
Adair  v.  Shaw,  343. 
Adams,  Appeal  of,  325. 

V.  Adams,  176,  186,  187,  205,  223, 

235,  237,  273. 
V.  Beall,  390,  393,  403,  405,  421. 
V.  Dickson,  166. 
V.  Fitzpatrick,  482. 
V.  Gleaves,  363. 
V.  Iron  Cliflfs  Co.,  534,  536. 
V.  McKay,  247. 
V.  Mackey,  146. 
V.  Main,  80,  84,  85. 
V.  Palmer,  4,  6. 
V.  State,  63. 
Adams'  Estate,  In  re,  235. 
Addlcks  V.  Christoph,  517. 
Adger  v.  Ackerman,  37,  44. 
Adoue  V.  Spencer,  153. 
Adye  v.  Feuilleteau,  351. 
^tna  Ins.  Co.  v.  Resh,  111. 
.^tna  Life  Ins.  Co.  v.  Nexsen,  503. 

TIFF.P.&  D.Rel.(2d  Ed.)  (553) 


Afflick's  Estate,  In  re,  837. 
Agnew,  Appeal  of,  186. 
Ago  V.  Canner,  155. 
Agresta  v.  Stevenson,  527. 
Ahrenfeldt  v.  Ahrenfeldt,  204. 
Ainslie  v.  Martin,  464. 
Albany  Fire  Ins.  Co.  v.  Bay,  123. 
Albee  V.  Albee,  59. 

V.  Carpenter,  97. 
Albert  v.  Perry,  324. 
Albin  V.  Lord,  158. 
Albring  v.  Ward,  242. 
Albro  V.  Jacquith,  551. 
Aldrich  V.  Bennett,  282, 

V.  Grimes,  411. 

V.  Steen,  17. 
Aldridge,  Ex  parte,  202,  204. 
Alexander  v.  Alexander,  151,  152,  350. 

V.  Bufflngton,  355. 

V.  Crittenden,  98. 

V.  Hard,  105. 

V.  Morgan,  140. 
Alexander's  Adm'r  v.  Alexander,  248, 

350. 
Alexander's  Estate,  In  re,  365. 
Alexier  v.  Matzke,  438. 
Alford  V.  Cook,  510. 
Alger  V.  City  of  Lowell,  461. 
Alixanian  v.  Alixanian,  29. 
Allen  V.  Allen,  101,  111,  113,  277,  481. 

V.  Anderson  &  Anderson,  413. 

V.  Berryhlll,  445,  449. 

V.  Burlington,  C.  R.  &  N.  R.  Co., 
515. 

V.  Crosland,  378. 

V.  Gaillard,  352. 

T.  Hall,  36. 


554 


CASES  CITED. 
[The  figures  refer  to  pages.J 


Allen  V.  Hanks,  151. 

V.  Jacobi,  254. 

V.  Maronue,  501. 

V.  Mutual  Compress  Co.,  487. 

V.  Poole,  413,  415, 

V.  Tiffany,  374. 

V,  Whitlark,  502. 
Allen's  Appeal,  11, 
Alles  V.  Lyon,  111. 
Alley  V.  Winn,  129,  134. 
Allfrey  v.  Allfrey,  364. 
Ailing  V.  Ailing,  258. 
Allis  V.  Billings,  445,  449. 
Allman  v.  Owen,  362. 
Almond  v.  Almond,  43. 

V.  Bonnell,    151,    152. 
Almy  V.  Wilcox,  133. 
Alpaugh  V.   Wood,  507. 
Alsberry  v.  Hawkins,  465. 
Alston  V.  Alston,  316,  322. 

V.  Boyd,   444. 

V.  Munford,  362. 
Alsworth  V.  Corditz,  389. 
Althen  v.  Tarbox,  123. 
Althorf  V.  Wolfe,  547. 
Alvey  V.  Hartwlg,  256. 
Ambrose  v.  Kerrison,  137. 
American  Bible  Soc.  v.  Price,  457. 
American  Brake  Shoe  &  Foimdry  Co. 
V.  Hank,  522. 

V.  Jankus,  523. 

V.  Toluszis,  517. 
American   Bridge   Co.    v.    Seeds,   517, 

532. 
American  China  Development  Co.  v. 

Boyd,  502. 
American  Circular  Loom  Co.  v.  Wil- 
son, 507. 
American  Mortg.  Co.  v.  Wright,  409, 

410,  414. 
American    Seamen's   Friend    Soc.    v. 

Hopper,  457. 
American  Smelting  &  Refining  Co.  v. 

McGee,  521. 
American  Tobacco  Co.  v.  Pollsco,  427. 
Ames  V.  Union  R,  Co.,  537. 
Amick  V.  O'Hara,  451. 
Ammons  v.  People,  374. 


Amos  V.  American  Trust  &  Savings 

Bank,  444. 
Anderson  v.  Anderson,  13,  75,  97,  152, 
441. 

V.  Anderson's  Estate,  337. 

V.  Citizens'  Nat.  Bank,  119. 

V.  Great  Northern  R.  Co.,  516. 

V.  H.  C.  Akeley  Lumber  Co.,  52:, 

V.  Milliken  Bros.,  519. 

V.  Minnesota  &  N.  W.  R.  Co.,  521, 

V.  Smith,  139. 

V.  Soward,  414. 

V.  State,  264,  26<. 

V.  Thomas,  374. 
Anderson's  Adm'r  v.  Smith,  322. 
Andrecski  v.   New  Jersey  Tube  Co., 

523. 
Andress  v.  Weller,  463. 
Andrews,  In  re,  267,  3281. 

V.  Andrews,  4,  5,  43. 

V.  Boedecker,   541. 

V.  Green,  541. 

V.  Jones,  166,  171. 
Andticus'  Adm'r  v.  Plnevllle  Coal  Co., 

478. 
Angelo  V.  People,  436. 
Anglo-Californian  Bank  v.  Ames,  447, 

450. 
Anlchinl   v.   Anichinl,   213,   225. 
Ankeney  v.  Hannon,   162. 
Annin  v.  Annin,  182. 
Anonymous,  11,  17,  26,  27,  42,  60,  188, 

193,  211,  219,  272,  329,  379. 
Antioch  Coal  Co.  v.  Rockey,  519. 
Anvil  Min.  Co.  v.  Humble,  487. 
Appleby  v.  Appleby,  166,  167,  169. 
Applegate  v.  Applegate,  28. 
Appleton  Waterworks  Co.  v.  City  of 

Appleton,  482. 
Appleton  V.  Warner,  29. 
Archer-Foster  Const.   Co.  v.  Vaughn, 

527. 
Archer  v.  Hudson,  308. 
Armitage  v.  Snowden,  343. 

V.  Wldoe,  388,  404,  405. 
Armour-Oudahy  Packing  Co.  t.  Hart, 

494. 
Armour  &  Co.  v.  Russell,  511,  612,  513. 


Armstrong  v.  Armstrong,  90,  95,  214, 
220. 

V.  McDonald,  284. 

V.  Ross,  144. 

V.  Simonton's  Adm'r,  94. 

V.  Stone,  270,  273. 
Armstrong's    Heirs    v.    Walkup,    329, 

334,  350,  368. 
Arnold  v.  Iron  Works,  445,  449. 

V.  Limeburger,  96,  97.  104,  151. 

V.  McBride,  158. 

V.  Whitcomb,  443. 
Arrington  v.  Arrington,  189. 

V.  Yarbrough,  97. 
Arrowsmlth  v.  Harmoning,  358. 
Arthur  v.  Broadnax,  36,  117. 

V.  Oakes,  504. 
Arthm-s'  Appeal,  325,  367. 
Arundell  v.  Phipps,  179. 
Asberry's  Adm'r  v.  Asberry's  Adm'r, 

344. 
Ashby  V.   Elsberry  &  N.  H.  Gravel 

Road  Co.,  77. 
Ashfield  V.  Ashfield,  412. 
Aslimead  v.  Reynolds,  449. 
Ashton  V.  Thompson,  366. 
Ashworth   v.  Outram,   107,   120. 
Askew  V.  Dupree,  31,  33. 
Askey  v.  Williams,  398,  400. 
Aspinwall  v.  Aspinwall,  187. 
Astley  V.  Astley,  223. 
Atherton  v.  Atherton,   190,   195,   218, 

227. 
Atkin  V.  Acton,  494. 
Atkins  V.   Sherbino,  284. 
Atkyns  v.  Pearce,  131. 
Atlantic  Coast  Line  R.  Co.   ▼.  Beaz- 

ley,  531,  533. 
Atlantic  Compress  Co.  v.  Young,  496. 
Atoka  Coal   &  Mining  Co.   v.   Miller, 

512,  518,  525. 
Attorney  General  v.  Parnther,  457. 
Attrill  V.  Patterson,  488. 
Atwood  V.  Holcomb,  279,  280,  281,  283, 

284,  285,  286. 
Aughtie  V.  Aughtie,  40. 
Auld  V.  Auld.  219. 


CASES  CITED.  555 

[The  flgurea  refer  to  pages.] 

Austin  V.  Cox,  73. 

V.  Trustees,  385,  407. 
Avakian  v.  Avakian,  16,  43. 
Avery  v.  Vansickle,  147. 

V.  Wilson,  452. 
Aycock  V.  Hampton,  247, 
Ayer  v.  Warren,  117. 
Ayer  &  Lord  Tie  Co.  v.  Witherspoon's 

Adm'r,  357. 
Aylesford  Peerage  Case,  241. 
Ay  mar  v.  Ro£f,  20. 
Azbill  V.  Azbill,  121. 


B 

Babb  V.  Perley,   105. 

Babcock  v.  Old  Colony  R.  Co.,  529. 

Babcock  &  Wilcox  Co.  v.  Moore,  489. 

Babin  v.  Le  Blanc,  49. 

Bachelor  v.  Korb,  358. 

Kadenhoof  v.  Johnson,  324. 

Badger  v.  Phinney,  416,  417,  418,  423, 

433. 
Badgley  v.  Heald,  508. 
Bagley  v.  Fletcher,  415. 
Bahn  v.  Bahn,  196. 
Bail  V.  Bennett,  00. 
Bailey  v.  Bailey,  80,  85,  194,  198,  200, 
204. 

V.  Bamberger,  421. 

V.  Chesley,  250. 

v.  Cornell,  550. 

V.  Fink,  159. 

V.  Fiske,  27. 

V.  Rogers,  374. 

V.  State,  31. 

V.  Swallow,   527,   529. 
Baillie  v.  Kell,  497. 
Bain  v.  Bain,  208. 

V.  Buff's  Adm'r,  143,  146. 
Bainbridge  v.  Pickering,  397. 
Baity  v.  Cranflll,  43. 
Baker  v.  Baker,  11,  18,  86,  277. 

v.  Barney,  134. 

V.  Bolton,  79. 

V.  Braslin,  65,  68. 

▼.  Haldeman,  261. 


556 


Baker  v.  Hall,  97,  98. 

V.  Hathaway,  158. 

V.  Johnson,  498. 

V.  Kennett,  403,  410. 

V.  Lauterbach,  484. 

V.  Lorillard,  356. 

V.  Lovett,  390. 

V.  Lukeas,  140. 

V.  Oughton,  132. 

V.  Portland,  466. 

V.  Stone,  434. 

V.  Young,  65. 
Baker's  Appeal,  350. 
Baker's  Ex'rs  v.  Kilgore,  151. 
Balch  V.  Smith,  319. 
Baldridge   v.   State,  371. 
Baldwin  v.  American  Writing  Paper 
Co.,  524. 

V.  Carter.  103,  166,  167,  172. 

V.  Diinton,  443. 

V.  State,  252. 
Ball  V.  Bennett,  65,  66. 

V.  Bruce,  297,  303. 

V.  Livonia   Salt  &  Mln.  Co.,  497. 

V.  Lovett,  129. 

V.  Mannin,  443. 

V.  Montgomery,    101. 
Ballantine  v.  Proudfoot,  457. 
Ballard  v.  St.  Albans  Advertiser  Co., 

278. 
Ballin  v.  Dillaye,  163. 
Ballinger  v.  Wright,  113. 
Ball  &  Sheppard  v.  Paquin,  157. 
Balthaser's   Appeal,   346,   848. 
Baltimore  Baseball  Club  &  Exhibition 

Co.  V.  Pickett,  4SS,  493. 
Baltimore  &  O.  R.  Co.  v.  Baugh,  529, 
531,   533. 

V.  Fitzpatrick,  384. 

V.  State,  429. 
Banbury  Peerage  Case,  239. 
Bank  v.   Partee,  157. 
Bankard  v.  Shaw,  160. 
Banker  v.  Banker,  18. 
Bank  of  Commerce  v.  Baldwin,  119, 
157. 


CASES  CITED. 
[The  figures  refer  to  pages.] 

Bank  of  Greensboro  v.  Chambers,  143, 

144,  167. 
Bank  of  New  Orleans  v.  Matthews, 

470. 
Banks  v.  Conant,  277,  306^ 

V.  Galbraith,   52. 

V.  Goodfellow,  458. 

V.  Schofield's  Sons  Co.,  521. 
Banks'  Adm'rs  v.  Marksberry,  94. 
Bantz  V.  Bantz,  309,  481. 
Barbee  v.  Armstead,  80, 
Barber,  In  re,  458. 

V.  Graves,  385. 

V.  Harris,  105,  111. 

V.  People,  18,  19,  44. 

V.  Root,  105,  227. 

V.  Slade,  98,  106. 
Barbour  v.  Stephenson,  301, 
Barclay  v.  Com.,  9. 
Bardwell  v.  Purrington,  379,  477. 
Bare  v.  Crane  Creek  Coal  &  Coke  Co., 

519. 
Earhite's  Appeal,  481. 
Barker  v.  Boyd,  375. 

V.  Dayton,  132. 

v.  Hibbard,  398. 
Barkshire  v.  State,  4. 
Barlee  v.  Barlee,  196. 
Barnaby  v.  Barnaby,  390. 
Barnes  v.  Allen,  81,  244. 

V.  Barnes,  45,  186,  195,  197,  216, 
395. 

V.  Martin,  78. 

V.  Toye,  397. 

V.  Underwood,  139. 
Barnet  v.  Com.,  368. 
Baruett  v.  Barnett,  200,  202. 

v.  Bull,  358. 

V.  Leonard,  77. 
Barney    v.    Parsons'    Guardian,    340, 
345. 

V.  Saunders,  344,  350,  351. 
Barnsback  v.  Dewey.  326,  327. 
Barnum  v.  Frost's  Adm'r,  331. 
Barr  v.  Armstrong,  131. 
Barrack  v.  McCulloch,  143. 
Barrere  v.  Barrere,  188,  194. 


Barrett  v.  Buxton,  459. 

V.  Provinclier,  368. 
Barron  v.  Barron,  98,  178,  179,  180. 
Barry  v.  City  of  St.  Louis,  547. 
Bartholomew  v.  Dighton,  383. 

V.  Jackson,  479,  481. 
Bartlett,  Ex  parte,  337. 

V.  Batts,   384. 

V.  Cowles,  368,  417. 
Bartley  v.   Richtmyer,  290,  297,  300, 

302,  303,  330. 
Barton  v.  Barton,  82,  155. 

V.  Beer,  122. 

V.  Bowen,  336. 
Barton's  Lessee  v.  Morris'  Heirs,  13. 
Barwicls  v.  Miller,  248. 

V.  Rackley,  383,  384. 
Bascomb  v.  liascomb,  26,  42. 
Basford  v.  Pearson,  157,  158. 
Bass  V.  Cook,  329. 
Basse  v.  Allen,  488. 
Bassett  v.  Bassett,  13,  39,  42,  85. 
Bass  Furnace  Co.  v.  Glasscock,  493. 
Bassi  V.  Orth,  546. 
Bassler  v.  Rewodlinskl,  111. 
Bast  V.  Bast,  222. 

V.  Byrne,  497. 
Batchelder  v.  Sargent,  158,  161. 
Bates  V.  Ball,  459. 

V.  Dandy,  98. 

V.  Seely,   110,   111. 

V.  Shraeder,   106. 
Battishlll  V.  Humphreys,  429. 
Battle  V.  Vick,  323. 
Bander's  Appeal,  201. 
Baughman  v.  Baughman,  210. 
Baulec   v.    New    York    &    H.    R.   Co., 

515. 
Baum  V.  Hartmann,  364,  374» 

V.  Mullen,   70,   72. 
Bauman   v.   Cowdiu,   511. 
Baurens,  In  re,  59. 
Baxter  v.  Bush,  430. 

V.  Roberts,  516. 
Bayles  v.   Burgard,  302. 
Baylis  v.  Dineley,  388. 
Bay  Shore  R.  Co.  y.  Harris,  427. 


CASES   CITED.  557 

[The  figures  refer  to  pages.] 

Bazeley  v.  Forder,  252. 
Beach  v.  Mullin,  489. 
Beachy  v.  Shomber,  357,  358. 
Beakhust  v.  Crumby,  311. 
Beal  V.  Harmon,  340. 

V.  Warren,  156,  159. 
Beale  v.  Arabin,  133. 

V.  Knowles,   104. 
Beals  V.  See,  447. 
Beam  v.  Froueberger,  344, 
Bean  v.   Bumpus,  368. 

V.  Morgan,  117. 
Bear  v.  Hays,  90. 
Beard  v.  Beard,  178. 

V.  Dean,  325. 

V.  Dedolph,   155,   160. 
Beardsley  v.  Hotchkiss,  257,  2I5S, 
Beasley  v.   State,  462. 

V.  Watson,  330. 
Beason  v.  State,  386. 
Beaver  v.  Bare,  279,  280,  281,  282,  288. 

V.  Crump,  244. 
Beazley  v.  Harris,  343. 
Beck   V.    Standard  Cotton  Mills,  516, 

519. 
Becker  v.  Gibson,  311. 

V.  Mason,  433. 

V.  Schwerdtle,  307. 
Beckman  v.  Stanley,  117. 
Beckwith  v.   Butler,  444. 
Beckwith  Organ  Co.  v.  Malone,  520- 
Bedan  v.  Turney,  86. 
Bedell  v.   Constable,   369. 
Bedell's  Heirs  v.  Lewis'  Heirs,  384. 
Bedford  v.  McKowl,  297,  301,  303. 
Beebe  v.  Beebe,  194. 

V.  Estabrook,  310. 
Beeby  v.  Beeby,  219,  220,  22L 

V.  Reding,  261,  262. 
Beekman  v.  Beekman,  194. 

V.  Bonsor,  468. 
Beeler  v.  Dunn,  335. 

V.  Young,  397,  399,  400. 
Beeler's  Heirs  v.  Bullitt's  Heirs,  407. 
Beggs  V.  State,  20,  22. 
Behrens  v.  McKenzie,  447,  451. 
Beickler  v.  Guenther,  392,  420. 


558 


CASES  CITED. 
[The  figures  refer  to  pages.] 


Beissel   v.   Vermillion    Farmers'    Ele- 
vator Co.,  487,  501. 
Belcliier,  Ex  parte,  345. 
Beleal  v.  Northern  Pac.  R.  Co.,  524. 
Belknap  v.  Lady  Weyland,  117. 

V.  Stewart,   132. 
Bell  V.  Clarke,  37. 
V.  Josselyn,  551. 
V.  Love,  322. 
V.  Rudolph,   374. 
V.  State,  62. 
Bellamy  v.  Thornton,  336. 
Bellefontaine  &  I.  R.  Co.  v.  Snyder, 

429. 
Beller  v.  Beller,  205. 
Bell's  Adm'r  v.  Jasper,  374. 
Bellune  v.  Wallace,  374. 
Bemis  v.  Call,  115. 
Benjamin  v.  Benjamin,  127,  128. 

V.  Dockham,  131. 
Benkert  v.  Benkert,  205. 
Bennet  v.  Davis,   142. 
Bennett  v.  Allcott,  299.  302. 

V.  Bennett,   77,   80,   84,   200,   204, 

272. 
V.  Byrne,  324,  32G. 
V.  Davis,  388,  388. 
v.  Harms,  108. 
v.  Hibhert,  468. 

V.  Himmelberger-Harrison     Lum- 
ber Co.,  512. 
V.  Morton,  490,  501. 
V.  Smith,   81,  82. 
V.  Truebody,  548. 
Benson  v.  Goodwin,  531. 

V.  Remington,  276. 
Bentley  v.  Doggett,  540. 

v.  Smith,  488. 
Bently  v.  Terry,  275,  276. 
Benton,  In  re,  316,  336. 

V.  Benton,  15. 
Bent's  Adm'r  v.  St.   Vraln,  248. 
Benzing  v.  Steinway,  529. 
Berea  Stone  Co.  v.  Kraft,  533. 
Bergen  v.  Udall,  308. 
Berger  v.  Jacobs,  71,  75,  77,  78. 
Bergh  v.  Warner,  126,  131. 


Berkmeyer  v.  Kellerman,  308,  366. 
Bernard  v.  Pittsburg  Coal  Co.,  383. 
Bernecker  v.  Miller,  385. 
Berry  v.  Bakeman,  12. 

V.  Johnson,  326. 

V.  Powell,  248,  249. 

V.  Tullis,  249. 
Berthon  v.  Cartwright,  81. 
Bertles  v.  Nunan,  110,  111,  112. 
Bertolami   v.    United   Engineering   & 

Contracting  Co.,  514. 
Besant  v.  Wood,  185. 
Besondy,  In  re,  255,  258. 
Bessex  v.  Chicago  &  N.  W.  R.  Co.,  513. 
Bethune's  Will,  In  re,  29. 
Bettini  v.  Gye,  492. 
Bettle  V.  Wilson,  186. 
Beverley,  In  re,  439. 
Beverley's  Case,  442,  449,  461. 
Beverlin  v.  Beverlin,  32. 

V.  Castro,   182. 
Beverson's  Estate,  In  re,  35. 
Bevier  v.   Galloway,   132. 
Bibb  V.  State,  60,  61. 
BickerstaCf  v.  Marlln,  350. 
Bicknell  v.  Bicknell,  398. 
Bierbauer  v.  Wirth,  483. 
Bierer's   Appeal,   173,   174, 
Bigaouette  v,  Paulet,  80,  86. 
Bigelow  V.  Grannis,  414. 

V.  Kinney,  389,  405,  412,  413,  416, 
417. 
Bilder  v.  Robinson,  112. 
Billings  V,  Baker,  149, 
Billington  v,  Cahill,  484. 
Binford  v.  Johnston,  428. 
Bingham  v.   Miller,   230. 
Bird  V,  Utica  Gold  Min,  Co.,  514. 
Birdsall  v.  Edgerton,  250. 
Birmingham  v.  O'Neil,  58. 
Birmingham  Southern  B,  Co.  v.  Lint- 

ner,  77, 
Birmingham      Waterworks      Co.      v. 

Hume,  153. 
Birtwhistle  v.  Vardill,  234. 
Bisbee  v.  Gleasou,  374. 


BisHop  V.  Bishop,  59. 

V.  Ranney,  491. 
Bixby  V.  Dunlap,  537. 
Black  V.  Bryan,  135. 

V.  Hills,   422,   424. 
Blackburn  v.   Crawford,  33. 
Blackwell   v.   Willard,   469. 
Blaechinska    v.    Howard    Mission    & 
Home  for  Little  Wanderers,  91,  92, 
154. 
Blagge  V.  Ilsley,  209.  301,  302. 
Blair  v.  Adams,  249. 

V.  Chicago  &  A.  R.  Co.,  7a 

V.  Whittaker,  419. 
Blake  v.  Blake,  372. 

V.  Ferris,  545,  547,  548. 

V.  Lanyon,  537. 
Blakely's  Will,  In  re,  457. 
Blakeslee  v.  Tyler,  62. 
Blauchard  v.  Ilsley,  297,  329,  330. 

V.  Lambert,  32,  36,  45. 

V.  Nestle,  458. 
Blaney  v.  Blaney,  208,  209. 
Blankenmiester     v.     Blankenmlester, 

14. 
Blankenship   v.  Ross,  249. 
Blauser  v.  Diehl,  358,  375. 
Blaymire  v.  Haley,  29L 
Bleck  V.  Bleck,  225. 
Bledsoe  v.   Britt,  371. 
Blodget  V.  Brinsmaid,  25. 
Blomfield   v.    Eyre,    322. 
Blonski  v.  American  Enameled  Brick 

&  Tile  Co.,  517. 
Blood   V.   Enos,  508,   509. 
Bloomer  v.  Nolan,  398. 
Blossom  V.  Barrett,  28. 
Blount  V.  Bestland,  97. 
Blue  V.  Marshall,  349. 
Blurock  V.  Blurock,  196. 
Blust  V.  Pacific  States  Tel.  Co.,  512, 

516. 
Blythe  V.  Ayres,  235. 

V.  Hinckley,  468. 
Boardman's  Appeal,  166. 
Board  of  Childrens'  Guardians  of  Ma- 
rion County  V.  Shutter,  321,  327. 


CASES  CITED.  559 

[The  figures  refer  to  pages.] 

Board  of  Com'rs  of  Madison  County 

V.  Moore,  4-42. 
Boaz's  Adm'r  v.  Milliken,  346,  348. 
Bodkin  v.  Kerr,  92. 
Boeck  V.  Boeck,  199. 
Boehm  v.  City  of  Detroit,  429. 
Boehs   V.   Hanger,   10. 
Boggess  V.  Boggess,  196. 

V.  Richards'  Adm'r,  171. 
Boggs  V.  Adger,  351,  352. 
Bohnert  v.  Bohnert,  219. 
Boisseau  v.  Boisseau,  343,  344,  353. 
Boland  v.  McKowen,  111. 

V.  Missouri,  R.  Co.,  430. 
Boldrick  v.  Mills,  93. 
Boiling  V.   State,  454. 
Bolton  V.  Miller,  291,  292. 

V.  Prentice,  132,   135. 
Bond  V.  Bond,  443,  444. 

V.  Conway,  96. 

V.  Lockwood,  255,  348,  355,  362, 
373. 
Bonham  v.  Badgley,  26,  40,  47. 

V.  People,  374,  375. 
Bonner  v.  Evans,  372. 
Bonnett  v.  Bonnett,  270,  275,  276. 
Bonney  v.  Reardin,  139. 
Bonwit,  Teller  &  Co.  v.  Lovett,  128. 
Boody    V.    McKenney,    406,    411,    418, 

420. 
Booge  V.  Pacific  R.  Co.,  503. 
Bool  V.  Mix,  403,  415,  416. 
Booth  V.  Fordham,  110. 

V.  Boston  &  A.  R.  Co.,  515. 

V.  Manchester  St.  Ry.,  77. 

V.  Ratcliffe,   487. 

V.  Wilkinson,   339. 
Booth  Mercantile  Co.  v.  Murphy,  158. 
Borden  v.  Daisy  Roller  Mill  Co.,  520. 
Borland  v.  Welch,  167. 
Bort,  In  re,  271,  273. 
Boruff  V.  Stipp,  347. 
Boston  Bank  v.  Chamberlin,  413. 
Boston  Glass  Manufactury  v.  Binney, 

538. 
Bostwick,  In  re,  335. 

T.  Bostwick's  Estate,  481. 


560 


CASES  CITED. 
[The  flgurea  refer  to  pages.] 


BosvHe  V.  Attorney  General,  239. 
Bottiller  v.  Newport,  401. 
Bouchell  V.  Clary,  396,  400; 
Boukuiglit  V.  Epting,  151. 
Bouldeu  V.  Mclntire,  45. 
Bouklin  v.  Miller,  358. 
Boulting  V.  Boulting,  214,  215. 
Bounell  v.  Berryhill,  328. 
Bourgeois  v.  Ghauvin,  213,  214,  215. 
Bourne  v.  Maybin,  361,  362,  367. 
Bovard  v.  Kettering,  122. 
Bowden  v.  Gray,  90. 
Bowen  v.  Hall,  538. 
Bowers  v.  Bowers,  24,  26,  42,  47. 
Bower's  Appeal,  161. 
Bowes  V.  Tibbets,  279. 
Bowie  V.  Bowie.  220. 
Bowie  V.  Stonestreet,  179. 
Bowker  v.  Pierce,  351,  352. 
Bowles  V.  Bingham,  234,  242. 

V.  Winchester,  310. 
Bowman  v.  Bowman,  31,  33,  34. 
Bowring    v.     Wilmington    Malleable 

Iron  Co.,  518. 
Boyce  v.  Boyce,  59. 
Boyce's  Adm'r  v.  Smith,  444. 
Boyd  V.  Blaisdell,  287. 

V.  Boyd,  310. 

V.  Byrd,   290,   291. 

V.  State,  264,  266,  267. 

V.  Taylor,  517. 
Boyden  v.  Boyden,  411,  423. 
Boyer  v.  Berryman,  445,  447, 

V.  Dively,  52. 
Boyes'  Estate,  In  re,  333,  336. 
Boyett  V.  Hurst,  353. 
Boykin  v.  Collins,  426w 

V.  Rain,  105. 
Boylan  v.  Deinzer,  25. 
Boyle  V.  Boyle,  195. 

V.  Brandon,  302. 
Boynton  v.  Dyer,  350,  351. 
Boyson  v.   Collmer,  347. 
Bozeman  v.  Browning,  389. 
Braceglrdle  v.  Heald,  484. 
Bracy   v.    Kibbe,   303. 
Bradbum  v.  Wabash  R.  Co.,  517. 


Bradbury    v.    Place,   448. 
Bradford   v.   Greenway,  146, 
Bradley  v.  Amidon,  349. 

V.  Bradley,  205,  20a 

V.  Pratt,  395,  400. 

V.  Saddler,  175. 
Bradshaw  v.  Beard,  137, 

V.  Bradshaw,  368. 

V.  Van  Winkle,  434. 
Bradsher  v.  Cannady,  310. 
Brady,  In  re,  326. 
Eramwell  v.  Bramwell,  218,  22a 
Branch  v.  Branch's  Ex'r,  185. 
Brandon  v.  Brown,  420. 
Bransom's  Adm'r  v.  Labrot,  4281 
Branson  v.  Branson,  216. 
Brantley  v.  Wolf,  412,  435. 
Brashford  v.  Buckingham,  90. 
Brattain  v.  Cannday,  372. 
Braucht  v.  Graves-May  Co.,  420. 
Brawner  v.  Franklin,  418,  420. 
Bray  v.  Wheeler,  286. 
Brazil  v.  Moran,  65,  66,  67. 
Breckenridge's  Heirs  y.  Ormsby,  407, 

445. 
Bredin  v.  Dwen,  331, 
Breed  v.  Breed,  159. 

V.  Judd,  396,  421. 

V.  Pratt,  458. 
Breeding  v.  Davis,  104. 
Breidenstein  v.  Bertram,  235. 
Breig  v.  Chicago  &  W.  M.  R.  Co.,  528. 
Breiman  v.  Paasch,  85. 
Brennan  v.  United  Hatters  of  North 

America,  539. 
Bresser  v.   Saarman,  243. 
Bressler  v.   Kent,   123,  125,   144,  ISJ, 

160. 
Breton's  Estate,  In  re,  179. 
Brewer  v.  Wright,  507. 
Brick  V.  Rochester,  N.  Y.  &  P.  R.  Co., 

528. 
Brick's  Estate,  In  re,  368w 
Brickway's  Case,  442. 
Bridge  v.  Eggleston,   171. 
Bridges  v.  Hales,  319. 
Brien's  Estate,  In  re,  3261 


Brier'g  Appeal,  174. 
Briggs  V.  Evans,  302,  303. 

V.  McCabe,  390. 

V.  Morgan,  26. 
Brinkley  v.  Attorney  General,  48. 
Brinster  v.  Compton,  269,  271,  273. 
Brisco  V.  Brisco,  223. 
Briscoe  v.  Tarkington,  382. 
Bristor  v.  Chicago  &  N.  W.  R.   Co., 

281. 
Bristow  V.  Eastman,  435. 
Britton  v.  Turner,  509. 
Broadrick  v.  Broadrick,  168,  174. 
Broadstreet  v.  Broadstreet,  192. 
Broadus  v.  Rosson,  332. 
Broadwater  v.  Darne,  459. 
Broadwell  v.  Getman,  484. 
Brodrib  v.  Brodrib,  362. 
Brohl  V.  Llngeman,  261. 
Bromley  v.  Wallace,  86. 
Brook  V.  Brook,  49. 
Brooke  v.  Filer,  469. 

V.  LfOgan,  274. 
Brooker  v.  Scott,  395. 
Brookes  v.  Brookes,  203. 
Brooks  V.  Barrett,  457. 

V.  Brooks,  371,  372. 

V.  Brooks'  Ex'rs,  174. 

V.  Rayner,  374. 

y.  Schwerin,  91. 

V.  Swayer,  434. 

V.  Tobin,  373. 
Brossman    v.   Drake   Standard   Mach. 

Works,  513. 
Brothers  v.  Cartter,  532. 
Brow  V.  Brightman,  255. 
Brower  v.  Fisher,  458. 
Brown,   In   re,   270,   362. 

V.  Ackroyd,  136. 

V.  Bennett,  117. 

V.  Board  of  Education,  502. 

V.  Bokee,  97. 

T.  Brown,  198,  208,  218,  443. 

T.  Caldwell,   390. 

V.  Campbell,  351. 

V.  Crown    Gold   Milling   Co.,   502, 
510. 


CASES  CITED.  561 

[The  figures  refer  to  pages.] 

Brown  v.  Dunham,  342,  343. 

V.  Flfield,    156,    160, 

V.  Fitz,   94. 

V.  French,   351,  352. 

V.  Gilchrist,   529. 

V.  Grant,  332. 

V.  Hull,  383,  384. 

V.  Huntsman,  369. 

V.  Kerby,  249. 

V.  Lynch,  312,  328. 

V.  McCune,  433,  434. 

V.  Ramsay,  282,  283,  303. 

V.  Smith,  258. 

V.  State,  252,  306,  436. 

V.  Wheelock,  426. 

V.  Winona  &  St.  P.  B.  Co.,  531- 

V.  Wright,  351. 
Browne  v.  Bedford,  336. 

V.  Dexter,  465. 
Browning  v.  Jones,  86. 

V.  Reane,  12,  17. 
Brown's  Adm'rs  v.  Brown's  Adm'rs, 

93,  143. 
Brown's  Adoption,  In  re,  243. 
Bruce  V.  Burke,  29. 

V.  Griscom,  310. 
Brumby  v.    Smith,  498. 
Bruner  v.   Bruner,  20i. 

V.  Mosner,  481. 
Brunson  v.  Henry,  309. 
Brunswig  v.   White,  298. 
Brusle  v.  Dehon.  114. 
Brusseau  v.  Lower  Brick  Co.,  517. 
Bryan  v.  Bryan,  100. 

V.  Doolittle,  139. 

V.  Jackson,  259. 

■     V.  Lyon.   270,   274. 

Bryant  v.   Jackson,  452. 

V.  Rich,  544. 
Bryce  v.  Wynn,  325. 
Buchanan  v.  Hubbard,  412,  415,  416. 

V.  Lee,   151. 

V.  Turner,   143. 
Bucher  v.  Ream,  90. 
Buck  V.   Wroten,  142. 
Bucklew  V.  Central  Iowa  R.  Co.,  536. 
Buckley  v.  Collier,  89,  90. 


TIFF.P.&  D.Rel.(2d  Ed.)— 36 


562 


CASES  CITED. 
[The  figures  refer  to  pages.] 


Buckley's  Adm'r  v.  Howard,  257. 
Buckmaster  v.  Buckmaster,  205. 
Buckminster  v.  Buckminster,  254, 
Buckner's  Adm'rs  v.  Buckner,  238. 
Buerfening  v.  Buerfening,  224. 
Bullard  v.  Briggs,  183. 

V.  Spoor,  384, 
Bullock  V.  Babcock,  430,  431. 

V.  Knox,  242. 
Bulmer  v.  Hunter,  172. 
Bumgardner  v.  Harris,  171. 
Bunce  v.  Bunce,  358. 
Bundschuh  v.  Mayer,  72. 
Bundy  v.  Dodson,  277. 
Bunel  V.  O'Day,  238. 
Bunnel  v.  Witherow,  171. 
Bunnell  v.  Greathead,  87. 
Burch  V.  Breckinridge,  143. 
Burdeau  v.  Davey,  342. 
Burdett  v.  Williams,  414,  434. 
Burgess  v.  Carpenter,  538. 
Burghart  v.  Angerstein,  395,  397. 
Burgher    v.   Frakes,   315. 
Burk  V,  Burk,  200,  202,  204, 
Burke,  In  re,  257. 

V.  Allen,    445,    449. 

V.  Ellis,  427. 

V.  Turner,  257. 

V.  AVheaton,  440. 
Burke  &  Williams  v.  Mackenzie,  353. 
Burleigh  v.  Coffin,  96. 
Burlen  v.   Shannon,  189,  227,  229. 
Burley  v.  Russell,  433. 
Burlingame  v.  Burlingame,  280. 
Burnard  v.  Haggis,  432. 
Burnet  v.  Burnet,  360. 
Burnett  v.  Burkhead,  82. 

V.  Burnett,  32. 

V.  Kinnaston,  98. 
Burney  v.  Ryle,  504, 
Burnham  v.  Kidwell,  443,  445,  447. 

V.  Mitchell,  443. 

V.  Seaverns,  431. 
Burns  v.  Burns,  219,  220. 

V.  Cooper,  116,  159. 

V.  Wilson,  384. 
Burr  V.  Burr,  188. 


Burr  V.  Swan,  158. 

V.  Wilson,  425. 
Burrage  v,  Briggs,  244,  246. 
Burrill  v.  Eddy,  525. 
Burritt  v.  Burritt,  255. 
Burrows   v.   Ozark   White   Lime  Oo., 

516. 
Burson's  Appeal,  151. 
Burt  V.  McBain,  71. 
Burtis  V.  Burtis,  42,  43,  188. 

V.  Thompson,  400. 
Burton  v.  Anthony,  397. 

V.  Behan,  482. 

V.  Belvin,  250. 

V.  Tunnell,  362. 
Burtwhlstle  v.  Vardill,  237. 
Bury  V.  Phillpot,  238,  240. 
Bush  V.  Bush,  198. 

V.  Linthicum,  384,  390,  402,  405. 

V.  West  Yellow  Pine  Co.,  523. 
Butler  V,  Breck,   139,  391. 

V,  Buckingham,  115,  125. 

V.  Butler,  193,  198,  199,  201,  216, 
257. 

V.  Eschleman,  12. 

V.  Freeman,  320. 

V.  Gastrin,  25. 

V.  Legro,  373. 

V.  New  York  &  B.  R.  Co.,  76. 

V.  Washington,  227. 

V.  Winona  Mill  Co.,  510. 
Butterfield  v,  Ashley,  304,  305,  537. 

V,  Beall,  104,  105. 

V.  Byron,  498. 
Butterick  Pub.  Oo.  v,  Whitcomb,  4&4, 

497, 
Bynum  v.  Wicker,  111. 
Byrd  v.  State,  461. 

V,  Turpln,  359. 
Byrne  v.  Learnard,  527. 

V,  New  York  Cent.  &  H.   R.   R. 
Co.,  427. 


Caballero,  Succession  of,  v.  Executor, 

49. 
Cabbie  v.  Cabbie,  359. 


CASES  CITED. 
[The  figures  refer  to  pages.] 

Cadden  v.  American  Steel-Barge  Co., 

529. 
Cad  well  v.  Sherman,  277. 
Caffey  v.  Kelly,  93,  94. 
Caffrey  v.  Darby,  348. 


oG3 


Cain  V.  Bunkley,  163. 

V.  Devitt,  278. 
Cairns  v.  Cairns,  214. 
Caldwell  v.  Blanchard,  118,  135. 

V.  Eneas,  479. 

V.  Young,  350. 
Calhoon  v.  Baird,  382. 
Calboun  v.  Calhoun,  329,  336. 
Calkins  v.  Long,  186. 
Call  V.  Ruffin,  374. 

V.  Ward,  331. 
Calligan   v.    Woonsocket    St    R.    Co., 

276. 
Callis  V.  Day,  389,  417. 
Callo  V.  Brouncker,  494,  495. 
Calvert  v.  Godfrey,  356. 
Calvo  V.  Charlotte,  C.  &  A.  R.  Co.,  529. 
Cameron-Barkley     Co.     v.     Thornton 

Light  &  Power  Co.,  459. 
Cameron  v.  Hicks,  382. 
Camp  V.  Smith,  167. 
Campbell  v.  Campbell,  194,  278. 

V.  Faxon,    Horton    &    Gallagher, 
498. 

V.  Fichter,  349. 

V.  Kuhn,  449. 

V.  Rust,  504. 

V.  Stakes,  430,  432. 

V.  Wallace,  464. 

V.  Williams,  362. 
Campbell's  Adm'r  v.  GuUatt,  31,  33. 
Campion  v.  Cotton,  166,  171. 
Canale  v.  People,  21. 
Canby's  Lessee  v.  Porter,  105. 
Candy  v.  Coppock,  116. 

V.  Hanmore,  362. 
Caney  v.  Bond,  348. 
Cannon  v.  Alsbury,  21,  33,  390. 

V.  Cannon,  241; 
Canovar  v.  Cooper,  277,  281,  283. 
Cantelou  v.   Doe,  28. 
Cantine  v.   Phillips'  Adm'r,  391,  304. 
Cany  v.  Halleck,  510. 


Cany  v.  Patton,  130. 

Capehart  v.  Huey,  344. 

Capel  V.  Powell,  60,  G7. 

Capen  v.  Garrison,  356. 

Caplinger  v.  Stokes,  342. 

Capper  v.  Louisville,  E.  &  St.  L.  Ry. 

Co.,  531. 
Card  V.  Eddy,  535. 
Carey  v.  Hertel,  274. 

V.  Mackey,  186. 

V.  Rochereau,  551. 
Cargill  V.  Cargill,  203. 
Carleton  v.  Haywood,  65,  66,  67. 

V.  Lovejoy,  93. 

V.  Rivers,  90. 
Carlisle  v.  Tuttle,  312. 

V.  U.  S.,  466. 
Carlson  v.  Oregon  Short-Line  &  U.  N. 

Ry.  Co.,  512. 
Carmichael  v.  State,  31,  33. 
Carne  v.  Brlce,  93. 

Carpenter  v.  Carpenter,  195,  198,  404, 
444. 

V.  Comings,  176. 

V.  McBride,  342. 

V.  Mitchell,  119,  158,  163. 

V.  Rodgers,  459. 

V.  Soloman,  368. 

V.  Whitman,  247,  250. 
Carr  v.  Carr.  04,  272,  274. 

V.  Clough,  404,  419. 

V.  Holliday,  447. 

V.  Spannagel,  369. 

V.  State,  436. 

V.  Taylor,  97. 
Carrier  v.  Sears,  445,  449. 
OarriUo  v.  McPhillips,  348. 
Carris  v.  Carrls,  10,  11,  43. 
Carrol  v.  Bird,  506. 

V.  Blencow,   117. 
Carroll  v.  Carroll,  45. 
Carson  v.  Carson.  154. 

V.  Murray,  186,  187. 
Carter  v.  Carter,  101,  151. 

V.  Howard,  131.  135. 

V.  Louisville,  N.  A.  &  C.  Ry.  Co., 
544. 

V.  McDermott,  511,  512,  513,  515. 


564 


Co. 


Carter  v.  State,  386. 
V.  Tice,  365,  Sm. 
V.  Towne,  428. 
V.  Wann,  159. 
Carteret  v.  Paschal,  98. 
Cartwrlght  v.  McGown,  28,  34,  85,  36, 

37,  38,  41,  44. 
Gary  v.  Cary,  340. 
V.  Dixon,  157. 
Cashman  v.  Henry,  161. 
Cass,  Succession  of,  371. 
Cassady  v.  Magher,  461. 
Cassedy  v.  Casey,  342. 
Cassin  v.  Delany,  65,  66,  67. 
Castanedo  v.  Fortier,  199. 
Castner     Electrolytic     Alkali 

Davies,  528. 
Caswell  V.  Caswell,  210,  211. 
Cathcart  v.  Robinson,  183. 
Catlin  V.  Haddox,  409. 
Caton  V.  Caton,  175,  212. 
Catterall  v.  Kenyon,  65. 
Caughey  v.  Smith,  304,  305,  637. 
Caujolle  V.   Ferrle,  44, 
Caulk  V.  Fox,  166. 
Cavanagh  v.  Dlnsmore,  542. 
Cavell  V.  Prince.  27.  40. 
Cave  V.  Roberts.  109. 
Cawthorne  v.  Cordrey,  484. 
Caylor  v.  Roe,  175. 
Cayzer  v.  Taylor,  518. 
Cazassa  v.  Cazassa,  311. 
C.  D.  Smith  &  Co.  V.  Ohler,  501. 
Cecil  V.  Salisbury,  412. 
Central  Grannarles  Co.  v.  Ault,  512. 
Central  R.  Co.  v.  Peacock,  545. 
Chace,  Ex  parte,  49. 

In  re,  50. 
Chaddock  College  v.  Bretherlck,  49f.. 
Chambers  v.  Perry,  94. 

V.  Woodbury  Mfg.   Co.   of  Balti- 
more County,  516,  519. 
Chamblee  v.  Baker,  493. 
Champlaln  v.  Stamping  Co.,  501. 
ChampUn  v.  ChampUn,  186. 
Chandler  v.  Chandler,  272,  274. 
V.  Com.,  437. 


CASES  CITED. 
[Th«  figures  refer  to  pages.] 

Chandler  v.  Deaton,  261. 

V.  Simmons,  407,  411,  419,  420. 
Chapln  V.  Shafer,  415. 
Chaplin  V.  Illinois  Terminal  R.   Co., 

535. 
Chapline  v.  Moore,  257. 

V.  Stone,  17. 
Chapman  v.  Chapman,  33. 
V.  Duffy,  406. 
V.  Hughes,  394,  425. 
V.  Tibblts,  360. 
Chappie  V.  Cooper,  394,  397. 
Chapsky  v.  Wood,  270,  272,  274,  275, 

276. 
Charles  v.  Andrews,  167. 

V.  Hastedt,  434. 
Charron  v.  Union  Carbide  Co.,  618. 
Chase  v.  Chase,  42. 

V.  Elklns,  281,  285,  28ft. 
V.  Fltz,  175. 
V.  Knabel,  542. 
V.  Smith,  281,  284. 
Chastaln  v.  Johns,  261. 
Chattahoochee  Brick  Co.  v.  Braswell, 

524. 
Cheatham  v.  Cheatham,  196. 
Cheely  v.  Clayton,  189,  227. 
Cheeney  v.  Ocean  S.  S.  Co.,  530. 
Cheever  v.  Wilson,  143,  189. 
Chenall  v.  Palmer  Brick  Co.,  524. 
Cheney  v.  Arnold,  32,  34,  37. 

V.  Roodhouse,  353,  372. 
Chesapeake,  O.  &  S.  W.  R.  Co.  v.  Mc- 
Dowell, 523." 
Cheshire  v.  Barrett,  411,  412. 
Chesson  v.  Walker,  528. 
Chew  V.  Bank  of  Baltimore,  445. 
Chew's  Estate,  In  re,  371. 
Chicago  Anderson  Pressed  Brick  Go. 

V.  Sobkowiak,  532,  533. 
Chicago,  B.  &  Q.  R.  Co.  v.  Abend,  513. 
V.  Avery,  511,  517,  529. 
V.  Dickson,  545. 
V.  Dunn,  70. 
V.  McLallen,   516. 
V.  Merckes,  521. 
Chicago  City  R.  Co.  v.  McMahon,  541. 
V.  Wilcox,  429. 


CASES   CITED. 
[The  figures  refer  to  pages.] 


565 


CMcago  Drop  Forge  &  Foundry  Co.  v. 

Van  Dam,  523. 
Chicago  Great  Western  R.  Co.  v.  Crot- 

ty,  522. 
Chicago,  I.  &  L.  R.  Co.  v.  Barker,  528, 

534. 
Chicago,  K.  &  W.  R.  Co.  v.  Blevlns, 

512. 
Chicago,  M.  &  St.  P.  R.  Co.  v.  Riley, 
520. 
V.  Ross,  531,  533. 
Chicago,   St.   P.,   M.   &   O.    R.   Co.   v. 

Lundstrom,  533. 
Chicago  Tel.   Co.  v.  Schulz,  390,  406. 
Chicago  &  A.  R.  Co.  v.  Becker,  427. 
V.  Mahoney,  513. 
V.  Walters,  520. 
Chicago  &  E.  R,  Co.  v.  Flexman,  544, 

545. 
Chicago  &   E.   I.   R.   Co.   v.   Kammel, 

525,  533. 
Chicago    &    M.    Electric    R.    Co.    v. 

Krempel,  75,  78. 
Chicago  &  N.  W.  R.  Co.  v.  Jackson, 
511. 
V.  Moranda,  515,  535. 
Y.  Scheuring,   512. 
Chickering-Chase   Bros.    Co.   v.   L.   J. 

White  &  Co.,  159. 
Chilcott  V.  Trimble,  253. 
Child  V.  Detroit  Mfg.  Co.,  507. 
Childs  V.  Childs,  199. 
Chiles  V.  Drake,  36. 
Chilson  V.  Philips,  278,  283. 
Chipchase  v.  Chipchase,  206. 
Chipley  v.  Atkinson.  538.  539. 
Chirac  v.  Chirac's  Lessee,  469,  470. 
Choctaw,  6.  &  G.  R.  Co.  v.  Doughty, 
531. 
V.  Jones,  521. 
Choen  v.  Porter,  70. 
Choice  V.  State.  461. 
Chopin  V.  Badger  Paper  Co.,  516,  517. 
V.  Combined    Locks    Paper    Co., 
514. 
Chorpenning's  Appeal,  338,  340. 
Christian  v.  Hanks,  167. 
Christianberry  v.  Christianberry,  223. 


Church  V.  Church,  223. 

V.  Winchester     Repeating     Arms 
Co.,   534. 
Churchill  v.  White,  432. 
CIcotte    V.    Corporation    of    Catholic, 

etc..  Church,  480. 
Cincinnati,    H.    &   D.   R.    Co.    v.    Mc- 

MuUen,  529,  530. 
Cincinnati,  I.  &  C.  R.  Co.  v.  Clarkson, 

510. 
Citizens'  Loan  &  Trust  Co.  v.  Witte, 

153. 
Citizens'  State  Bank  v.  Smout,  159. 
Citizens'   St  R.   Co.  v.  Twiname,  78. 
City  Nat.  Bank  of  Providence,  R.  I., 

V.  Hamilton,  143. 
City  of  Austin  v.  Colgate,  347. 
City  of  Bloomington  v.  Annett,  78. 
City  of  Chadron  v.  Glover,  76. 
City  of  Chicago  v.  Major,  298. 
City  of  Indianapolis  v.  Bly,  488. 
City  of  Jacksonville  v.  Allen,  502. 
City   of   New   York   v.   Chelsea   Jute 

Mills,  380. 
Cizek  V.  Cizek,  188. 
Clague  V.  Clague,  217,  219,  220. 
Clapp  V.  Clapp,  223. 

V.  Fullerton,  458. 

V.  Inhabitants,  97,   104. 
Claridge  v.   Evelyn,  382. 
Clark,  In  re,  329. 

v.  Bayer,  273.  275,  276,  293,  295, 
297. 

V.  Burnside,  355. 

V.  Cassidy.  30, 

V.  Clark,  111. 

V.  Field,  8,  12,  35,  43. 

V.  Fitch,  285,  291,  292. 

V.  Fosdick,  186. 

V.  Garfleld,  353,  354. 

V.  Gilbert,  499. 

V.  Goddard,  390. 

V.  Koehler,  543. 

V.  Manchester,  502. 

V.  Marsiglia,  491. 

V.  Miller,  140. 

V.  Montgomery,  330. 

V.  Norwood,   113. 


566 


CASES  CITED. 


Clark  V.  Pendleton,  176. 
V.  Smith,  306. 
V.  Tate,  416. 
V.  Turner,  383. 
V.  Van  Court,  414. 
V,  Vermont  &  C.  R.  Co.,  548, 
Clarke  v.  Burke,  136. 
V.  Cordis,  327. 
V.  Leslie,  392,  399. 
V.  McCreary,   152. 
V.  Morey,  470. 
Clarke's  Appeal,  104. 
Clark's   Case,   504. 
Clark's  Ex'r  v.  Trail's  Adm'rs,  440. 
Clarkson  v.  Hatton,  245. 
Clauer's  Appeal,  235. 
Clawson  v.  Doe,  416. 
Clay  V.  Clay,  351,  353. 

V.  Shirley,  283. 
Clayton  v,  McKinnon,  344. 
Clegg  V.  Seaboard  Steel  Casting  Co., 

514,  527,  529. 
Clem  V.  Holmes,  301. 
Clement  v,  Mattison,  19,  133,  201. 
Clement's  Appeal,  370,  371. 
Cleveland,  C,   C.  &  St.  L.  R.  Co.  v. 
Austin,  527. 
V.  Jenkins,  506. 
V.  Osgood,  469. 
V.  Scott,  536. 
Cleveland,  C.  &  C.  R.  Co.  v.  Keary, 

533. 
Clinton  v.  Clinton,  196. 
Close  V.  Close,  194,  196. 
Clossman  v.  Lacoste,  503. 
Clothier  v.  Sigle,  132. 
Cloud  v.  Hamilton,  283. 
Clouser  v.  Clapper,  87. 
Clow  V.  Brown,  182. 
V.  Chapman,  85. 
Clowes  V.  Clowes,  206. 
Coal  Belt  Electric  R.   Co.  v.  Young 

542. 
Coal  Creek  Min.  Co.  v.  Davis,  521. 
Coastwaight  v.  Hutchinson,  166. 
Coates  V.  Wilson,  396. 
Cochran  v.  Cochran,  215,  220. 
Cochrane,  In  re,  56. 


[The  figure!  refer  to  pages.] 

Cockrlll  V.  Cockrill,  460. 
Cocksedge  v.  Cocksedge,  222, 
Cody  V.  Longyear,  529. 
Coe  V.  Smith,  509. 
Coffin  V.  Dunham,  136. 

V.  Landis,  488. 
Coggins  V.  Flythe,  348,  362. 
Cogley  V.  Cushman,  404,  417. 
Cohen  v.   New  York   Mut.   Life   Ins. 

Co.,  470. 
Colbert  v.  Daniel,  93. 

V.  Rings,  168,  173. 
Cole  V.  American  Baptist  Home  Mis- 
sion Soc,  167,  170. 

V.  Cole,   17,  19,  198. 

V.  Cole's  Ex'rs,  112. 

V.  Pennoyer,  388,  389. 

V.  Seeley,    139,    391. 

V.  Shurtleff,   139,   140. 

V.  Van  Riper,  149,  155,  160. 
Cole  Bros.  v.  Wood,  529. 
Coleman  v.  Burr,  91. 

V.  Commissioners  of  Lunatic  Asy- 
lum, 440, 

V.  Swick,  245. 

V.  White,  86. 
Coleman's   Case,   21. 
Coles  V.  Trecothick,  174,  175. 
Collar  V.   Patterson,   481. 
Collett  V.  Collett,  193. 
Collier   v.    Doe   ex    dem.    Alexander, 

158. 
Collins  V.  Bauman,  166. 

V.  Collins,   187. 

V.  Mitchell,  132. 

V.  State,  462. 

V.  Wassell,  143. 
Collyer  v.  Collyer,  481. 

V.  Moulton,  491. 
Colombine  v.  Penhall,  172. 
Colon  V.  Currier,  150. 
Colorado     Mill    &    Elevator    Co.    v. 

Mitchell,  536. 
Colt  V.  Colt,  384,  385. 
Coltman  v.  Hall,  328. 
Columbian  Enameling  &  Stamping  Co. 
V.  Burke,  511,  512,  513. 


CASES   CITED. 
[Tk«  figures  refer  to  rages.] 


567 


Columbus,  C.  &  I.  C.  R.  Co.  v.  Tro- 

esch,  512,  515. 
Columbus  R.  Co.  v.  Woolfolk,  542. 
Columbus  &  W.  R.  Co.   v.  Bradford, 

536. 
Colvin  V.  Currier,  160. 
Colvln's  Estate,  In  re,  36a 
Combs  V.  Combs,  40. 

V,  Hawes,  417. 

V.  Jackson,  317. 

y.  Rountree   Const.   Co.,  519. 
Comer  v.  Comer,  310. 
Comes  V.  Lamson,  484. 
Com.  V.  Addicks,  271,  272. 

V.  Balrd,  505. 

V.  Barney,  276. 

V.  Barry,  57. 

V.  Blaker,  264. 

V.  Boyer,  45. 

V.  Briggs,  272. 

V.  Burk,    61. 

V.  Butler,  61. 

V.  Coffey,  264. 

V.  Daley,   GO,   61. 

V.  Demott,  272. 

V.  Eagan,  62. 

V.  Fee,  247,  250. 

V.  Feeney,  61. 

V.  Gamble,  391. 

V.  Grabam,  48,  49,  50,  282. 

V.  Green,  437. 

V.  Hamilton,  255. 

V.  Hartnett,  62. 

V.  Hawkins,  461. 

V.  Heatb,  454. 

V.  Lane,  48. 

V.  Lee,  257,  335. 

V.  Lynes,   386. 

V.  McAfee,  57,  64. 

V.  Mead,  436. 

V.  Munsey,  61,  67. 

V.  Munson,  32. 

V.  Murray,  277,  391. 

V.  Nancrede,  244. 

V.  Neal,  60. 

V.  Ferryman,  26,  47. 

V.  Richards,  186. 

V.  Rogers,  454,   455. 


Com.  V.  Seed,  264,  266. 

V.  Strickland,  269. 

V,  Stump,   31,   36. 

V.  Whitney,  209. 

V.  Wills,  380. 
Conant  v.  Burnham,  138. 

V.  Conant,  223. 

V.  Kendall,  371. 
Concord  Bank  v.  Bellis,  123. 
Condon  v.  Churchman,  365. 

V.  Great  Southern  &  W.  Ry.  Co., 
298. 
Cone  V.  Cross,  481. 

V.  Delaware,  L.  &  W.  R.  Co.,  511. 
Conger  v.  Conger,  204. 
Congrave    v.    Southern    Pac.    R.    Co., 

536. 
Congreve  v.  Smith,  549. 
Conine  v.  Olympia  Logging  Co.,  525. 
Conkey  v.  Dickinson,  362. 
Conklin  v.  Doul,  121. 

V.  Thompson,  430. 
Conkling  v.  Levie,  153,  159. 
Conley  v.  Nailor,  459. 
Conn  V.  Coburn,  399,  400. 

V.  Conn,  254,  255. 
Connell  v.  Moore,  326. 
Connelly  v.  Weatberly,  368. 
Connelly  Mfg.  Co.  v.  Wattles,  506. 
Connor  v.  Berry,  140. 

V.  Stanley,  173. 
Connors  v.  Connors,  33. 

V.  Justice,  494. 
Conover,  In  re,  374. 
Conrad  v.  Abbott,  128. 

V.  Lane,  ^33. 
Conroy  v.  Morrill  &  Whitton    Const. 

Co.,  51L 
Consolidated  Case  Co.  of  St  Louis  v. 

Haenni,  522. 
Converse's  Ex'r  v.  Converse,  457. 
Conway  v.  Beazley,  49. 

V.  Nlcol,  86. 

v.  Reed,  430. 

V.  Smith,  119,  150,  160,  163. 
Cook  V.  Bartlett,  301. 

V.  Bybee,  267,  274. 

V.  Cook,  30,  195,  204,  22a 


568 


Cook  V.  McCabe,  498. 

V.  Wood,  87. 
Cooke  V.  Beale,  371. 

V.  Bremond,  113. 
Cookson  V.  Toole.  150,  160,  163. 
Cooley  V.  Dewey,  248. 
Coombs  V.  Cordage  Co.,  513,  516,  522. 

V.  Read,  151. 
Coon  V.  Moffitt,  300,  303. 
Cooner  v.  May,  310. 
Cooper,  In  re,  370,  371. 

V.  Cooper,  111,  197,  205. 

V.  Crane,  15. 

V.  Lloyd,  133. 

V.  Lowery,  547. 

V.  Simmons,  396. 

V.  State,  505. 

V.  Witham,  68. 
Cope  V.  Cope,  236,  241. 
Copeland  v.  Copeland,  14:. 
Copley  V.  O'Neil,  353. 
Copp  V.  Copp,  319,  370,  371. 
Coppedge  v.  Threadgill,  101. 
Copsey  V.  Copsey,  218. 
Corbett  v.  Spencer,  415. 
Corbin  v.  American  Mills,  548L 
Corcoran  v.  Allen,  353. 

V.  Holbrook,  529,  532. 

V.  Benehan,  350. 
Cordes  v.  Miller,  498. 
Cordova,  In  re,  326. 
Core  V.  Ohio  River  R.  Co.,  530. 
Oorgan  v.  Geo.  F.  Lee  Coal  Co.,  486, 

497. 
Corker  v.  Corker,  165. 
Cork  &  B.  Ry.  Co.  v.  Cazenove,  402. 
Cormack  v.  Marshall,  269,  274. 
Cornelia  v.  Ellis,  395. 
Cornish  v.  Cornish,  205. 
Corpe  V.  Overton,  421,  424. 
uorrie  v.  Corrie,  208,  270. 
Corrigan  v.  Kiernan,  319. 
Cort  V.  Lassard,  50i,  505. 
Corwin's  Appeal,  326. 
Cory  V.  Cook,  91. 

V.  Gertcken,  434. 
Cosgrove  v.  Ogden,  541,  543. 


CASES   CITED. 
[The  figures  refer  to  page*.] 

Costigan  v.  Mohawk  &  H.  R.  R.  Co., 

501,   502. 
Cothran  v.  Lee,  128,  135. 
Cotteen  t.  Missing,   179. 
Cotton  V.  Cotton,   114. 

V.  State,   374. 
Cotton's  Guardian  v.  Wolf,  3G9. 
Coughlan  v.  Philadelphia,  B.  &  W.  R. 

Co.,  517. 
Coughtry  v.  Woolen  Co.,  526. 
Coursey  v.  Coursey,  194. 
Coursolle  v.  Weyerhauser,  388. 
Courtright  v.  Courtright,  49,  254,  255. 
Cousen  v.  Cousen,  194. 
Cousins  V.  Boyer,  254,  259. 
Coutts  V.  Greenhow,  172. 
Covel  V.  Turner,  480,  481. 
Covenhoven,  In  re,  440. 
Covey  V.  Leslie,  338,  346. 

V.  Neff,  343. 
Covington  v.  Leak,  348,  353. 
Covington  St.  R.  Co.  v.  Packer,  297. 
Cowan  V.  Anderson,  384. 

V.  Musgrave,  481. 
Cowden  v.  Cowden,  310. 

v.  Wright,  287,  288,  289,  296. 
Cowles  V.  Cowles,  1»4,  201. 

V.  People,  381. 
Cowls    V.    Cowls,   268,   270,    273,    274, 

370. 
Cox  V.  Combs,  30. 
V.  Cox,   205. 
V.  HofCman,    126. 
V.  Keahey,  544. 
V.  Manvel,  357. 
V.  Osage  County,  440. 
V.  Scott,  97. 
Cox's  Adm'r  v.  Wood,  163. 
Cozard  v.  Cozard,  218. 
Cozine  v.   Horn,   324. 
Crabtree  v.  May,  413,  414. 
Craig  V.  Leslie,  468. 

V.  Van  Bebber,  412,  416,  420. 
Craighead  v.  Wells.  418. 
Craker  v.   Chicago  &  N.   W.  B.   Co., 

544. 
Cram  v.  Burnham,  37. 


CASES   CITED. 
[The  flsurtB  refer  to  pages.] 


569 


Cramsey  v.  Sterling,  36. 
Orane  v.  Crane,  10,  11. 

V.  Gough.    175. 

V.  Meginnis,  230. 

V.  Reeder,  464.  467. 

V.  Stafford,  384. 
Cranston  v.  Cranston.  151. 
Crashley  v.  Press  Pub.  Co.,  467. 
Crawford  v.  Crawford,  323. 

V.  Mail  &  Express  Pub.  Co.,  487. 

V.  State,  30. 
Creagli  v.  Tunstall,  442. 
Creed  v.  Hartmann,  549. 
Cregan  v.  Marston,  526. 
Crehore  v.  Creliore,  12. 
Cresinger  v.  Welch's  Lessee,  415. 
Creuze  v.  Hunter,  337. 
Crewe  v.  Crewe,  216,  217. 
Crispin  v.  Babbitt,  528. 
Critchfield  v.  Easterday,  444. 
Croan  v.  Phelps'  Adm'r,  248,  249. 
Crochet  v.  McCamant.  113. 
Crocker  v.  Crocker,  83. 
Crockett  v.  Calvert,  546. 
Crombie  v.  McGrath,  476. 
Cromwell  v.  Benjamin,  131. 
Cronemillar  v.   Duluth-Superior  Mill- 
ing Co.,  489,  501. 
Cronlse   v.    Cronise,    230. 
Crook  y.  Hill,  250. 
Crooks  V.  Crooks,  180. 

V.  Turpen,  322. 
Cropsey  v.  McKinney,  93,  121. 
Crosbie  v.  Hurley,  382. 
Crosby,  In  re,  361. 

V.  Crosby,  329. 

V.  Cuba  R.  Co.,  523. 

V.  Merriam,  350. 

V.  Otis,  93,  94. 

V.  Waters,  161. 
Crose  V.  Rutledge,  86. 
Cross  V.  Armstrong,  227. 

V.  Cross,   228,  238,   239,   240,  242. 

V.  Kent,  451. 
Crossman  v.  Crossman,  202,  203. 
Crosswell's  Petition,   In  re,  360. 
Crostwaight  v.  Hutchinson,  166. 
Crounse  t.  Crounse,  203,  207. 


Crow  V.  Crow,  306. 
Crowell's  Appeal,  322. 
Crowley  v.  Mills,  517. 

V.  Pacific  Mills,  521. 
Cruger  v.  Heyward,   257. 
Crum  T.   Sawyer,   157. 
Crumb,   Ex  parte,  369,  370. 
Crumlish    v.    Security   Trust  8c    Safe 

Deposit  Co.,  166,  173. 
Crump  V.  Morgan,  19,  41,  43,  188. 
Crusoe  v.  Clark.   509. 
Crutchfield,  Ess.  parte,  326. 
Cruzen  v.   McKaig,   121. 
Cuckson  V.  Stones,  499. 
Cudahy   Packing  Co.   v.   Wesolowski, 

517. 
Cuff  V.  Newark  &  N.  Y.  R.  Co.,  548. 
Cxilberson  v.  Alabama  ConBt.  Co.,  284. 
Cullen  V.  Norton,  532. 
Culp   V.  Lee,  348. 

V.  Stanford,   373. 

V.  Wilson,  310. 
Cumberland    Pipe  Line  Co.   v.   How- 
ard, 355. 
Cuming  v.  Brooklyn  City  R.  Co.,  289, 

293,  295. 
Cumming  v.  Cummlng,  217,  223,  225, 

226. 
Cummings  v.  Cummings,  362. 
Cumner  Parish  v.  Milton  Parish,  312. 
Cunningham  v.  Cunningham,  322. 

V.  Foublanque,  494. 

V.  Fountaine,  159. 

V.  Illinois  Cent.  R.  Co.,  431. 

V.  Irwin,   133. 

V.  Reardon,  137. 
Curd  V.  Dodds,  69. 
Cureton  v.  Moore,  139. 
Curlee  v.   Reiger.  508. 
Curry  v.  Curry,  480,  481. 

V.  Fulkinson's  Elx'rs,  97,  108. 
Curtin  v.  Patton,  414. 
Curtis  V.   Brownell,  444. 

V.  Crowe,   112,   154,   157. 

V.  Curtis,  276. 

V.  Engel,  121. 
Cushmau  v.  Cushman,  222. 
Cussons  V.  Skinner,  497. 


570 

Cuthberts  v.  State,  55. 
Cutter  y.  PoweU,  492,  508. 


CASES  CITED. 
[Tha  figures  refer  to  pages.] 


D V.  A ,  26. 

Dacey  v.  People,  455. 

Dade  v.  Alexander,  94. 

Dagley  v.  Tolferry,  306. 

D'AguUar  v.  D'Aguilar,  194,  217,  218, 

220. 
Daiger  v.  Daiger,  196,  199. 
Dailey  v.  Houston,  65,  66. 

V.  Singer  Mfg.  Co.,  158. 
Daily    Telegraph    Newspaper    Co.    v. 

McLaughlin,  444. 
Dain  v.  WycofT,  292,  301. 
Dale  V.  Robinson,  146,  147. 
Daley  v.  Norwich  &  W.  B.  Co.,  429. 
Dallas  V.  Heard,  143. 

V.  Hollingsworth,  415,  424. 
Dalrymple  v.   Dalrymple,   31,   33,  34, 

35,  50. 
Dalton  V.  Dregge,  85,  86. 
Daly  V.  Smith,  504. 
Damarell  v.  Walker,  370. 
Damron  v.  Ratlifif,  403,  405,  412. 
Dana  v.  Coombs,  413. 

V.  Short,  501. 
Dance  v.  Dance,  219. 

V.  McBride,  86. 
Danenhoffer  v.  State,  264. 
Daniel  v.  Daniel,  94. 

V.  Hill,  312,  337. 

V.  Newton,  326. 

V.  Swearengen,  538. 
Daniels  v.  Johnston,  519. 
Danley  v.  Rector,  307. 
Darby  v.   Stribling,  349. 
Darden  v.  Wyatt,  316,  328. 
Dare  v.  Dare,  28,  29. 
Darley  v.  Darley,  257. 
Darling  v.  Dent,  37,  48. 
Darraugh  v.  Blackford,  412. 
Darrigan    v.    New    York   «&  N.    B.   R, 

Co.,  531. 
Date  V.  New  York  Glucose  Co.,  615. 


Daugherty  v.   Chicago,  M.  &  St   P. 

R.  Co.,  542. 
Davenport  v.  Davenport,  202,  235. 

V.  Olmstead,  365. 
Davidson  v.  Abbott,  297,  302,  303. 

V.  Cornell,   520,  522. 

V.  Goodall,  297,  303. 

V.  Graves,  172. 

V.  Hutchins,   358. 

v.  Wampler,  356. 

V.  Young,  412,  414,  435. 
Davies  v.  Davies,  167. 

V.  Lockett,   384. 

V.  Williams,  291. 
Davis,  Appeal  of,  94. 

V.  Baugh,  383. 

V.  Caldwell,  397. 

V.  Central   Vermont  R.  Co.,  529 
536, 

V.  Combs,  362. 

V.  Compton,  114. 

V.  Davis,  58. 

V.  Dudley,  412. 

V.  Gay,  400. 

V.  Hagler,  365. 

V.  Hall,   464. 

V.  Harkness,  335. 

V.  Harman,  339. 

V.  Hudson,  327. 

V.  Krug,  244. 

V.  Phillips,  443. 

V.  Pryor,  36. 

V.  Rhame,  94. 

V.  State,  GO,  61. 
Davoue  v.  Fanning,  340. 
Dawes  v.  Howard,  255. 
Dawson  v.  Helmes,  415,  419,  420. 

V.  State,  461. 
Dawson's    Lessee    v.    Godfrey,    464, 

467. 
Day    V.    American    Machinist    Press, 
496. 

V.  Burnham,  128. 

V.  Caton,  480, 

V.  Day,  196,  198,  221. 

V.  Everett,  278. 
Dayton  v.  Dusenbury,  IBL 


129, 


Dean  v.  Peel,  291. 

V.  State,  264,  266. 
Deare  v.  Soutten,  136. 
Dearln  v.  FItzpatrick,  99,  100. 
De  Baum  v.  Van  Wagoner,  147. 
Debenham   v.    Mellon,    127,   128, 

130. 
De  Blane  v.  Lynch.  113. 
Decatur  Oar  Wheel  Co.  v.  Terry,  518. 

520. 
Decell  V.  Lewenthal,  398. 
Deford  v.  State,  383,  384. 
De  Forrest  v.  Wright,  548,  549. 
Defries  v.  Davis,  430. 
Dejarnatte  v.  Allen,  104. 
Delaney  v.  Delaney,  214. 

V.  Rochereau,    551. 
Delano  v.  Blake,  405,  411. 
De  Laveaga's  Estate,  In  re,  235. 
Delaware  L.  &  W.  R.  Co.  v.  Jones, 

79. 
De  Lesdernier  v.  De  Lesdernier,  208. 
Del  Genovese's  Will,  In  re,  29. 
Delliber  v.  Delliber,  220. 
Dellow's  Estate,  In  re,  324. 
Delpit  V.  Young,  15. 
De  Manneville  v.  De  Manneville,  B37. 
De  Mazar  v.  Pybus,  326. 
De  Meli  v.  De  Meli,  196. 
De  Mercellin,  In  re,  324. 
Deming  v.  Williams,  179. 
Dempsey  v.  Wells,  118. 
Den  V.  Stowe,  415. 
Dengate  v.  Gardiner,  75,  76,  78. 
Denison  v.  Cornwell,  329. 
V.  Denison,  32,  219. 
Dennett  v.  Dennett,  105,  443,  444. 
Dennis  v.  Clark,  254,  295. 
Dennison  v.  Page,  234,  242. 

V.  Willcut,  349. 
Dent  V,  Dent,  218. 

Denver  &  K.  G.  R.  Co.  v.  Sporleder, 
513. 
V.  Warring,  520. 
Derby  v.  Derby,  221. 
Derocher    v.    Continental    Mills,    423, 

424,  483. 
Derry  v.  Duchess  of  Mazarine,  117. 


CASES   CITED.  ^571 

[Tha  flgures  refer  to  pages.] 

Descelles  v.  Kadmus,  182. 

Deshon  v.  Wood,  175. 

Desilver's  Estate,  In  re,  444. 

De  Thoren  v.  Attorney  General,  36. 

Detrick's  Appeal,  196. 

Detroit    Lubricator    Co.    v.    Lavlgne 

Mfg.  Co.,  506. 
Devanbagh  v.  Devanbagh,  26,  27,  188. 
Devendorf  v.  Emerson,  131. 
Dever  v.  Selz,  114. 
Devlin  v.  Smith,  517. 
De  Vries  v.  Crofoot,  445. 
Dew  V.  Clarke,  457. 
Dewey  v.  Detroit,  G.  H.  &  M.  R.  Co., 
530. 

V.  School  Dist,  499. 
Dewitt  V.  Buchanan,  467. 
Dexter  v.  Booth,  131. 

V.  Cranston,  358. 

v.  Hall,   444. 
Dial  V.  Wood,  391. 
Diaper  v.  Anderson,  361. 
Dick  v.  Grlssom,  279,  282,  286. 

V.  Indianapolis,   C.   &  L.   R.   Co., 
534. 
Dickerson  v.  Bowen,  325,  371. 

V.  Brown,  31,  34,  36. 

v.  Dickerson,  370. 

v.  Gordon,  419. 
Dickin  v,  Hamer,  108. 
Dlcldnson    v.    Norwegian    Plow    Co., 
482. 

V.  Talmage,   285. 

V.  Winchester,  306,  307. 
Dickinson's  Appeal,  249. 
Dickson  v.  Frisbee,  484. 
Diefenback  v.  Stark,  509. 
Dieringer  v.  Meyer,  496. 
Dierker  v,  Hess,  280,  281,  286. 
Dilk    V.    Keighley,   398. 
Dilley  v.  Henry's  Ex'r,  152. 
Dillon  V.  Dillon,  219. 

V.  Lady  Mount   Cashell,  369. 
Di  Lorenzo  v.  Di  Lorenzo,  10. 
Dilts  V.   Stevenson,   179. 
Di  Marcho  v.  Builders'  Iron  Foundry, 

531. 
Disborough  v.  Disborough,  196. 


572 


CASES  CITED. 
[Th*  figures  refer  to  page«.] 


Disbrow  v.  Durand,  481. 

V.  Henshaw.  370. 
Ditson   V.  Ditson.  4,  7,   189,  226,  228. 
Diver  V.  Diver,  112. 
Dixon  V.  Hurrell,  133,  134. 

V.  Merritt,  401,  415. 

V.  People,  45. 
D.    M.    Smith's    Committee    v.    For- 

sythe,  447. 
Doan  V.  Dow,  333.  334. 
Dobbin  v.   Cordiner,   69. 

V.  Richmond  &  D.  R.  Co.,  532. 
Dobbins  v.  Thomas,  158. 
Docker  v.  Somes,  338. 
Dodd  v.  McCraw,  307. 
Dodge  V.  Dodge,  216. 

V.  Rush,  80,  84,  87,  88. 
Dodson  V.  McAdams,  481. 

V.  McKelvey,  348. 
Dodson-Braun   Mfg.   Co.   v.    Dix,   490. 
Doe  V.  Bates,  249. 

v.  Doe,  219. 

V.  Jackson,   358i. 

V.  Manning,   183. 

V.  Polgrean,  103. 

V.  Reid,  279. 

V.  Robertson,  467. 

V.  Roe,  83,  87. 
Doerr  v.   Daily   News  Pub.   Co.,  528, 
532. 

V.  Porsythe,  228. 
Dohorty  v.  Madgett  66. 
Doles  V.  Hilton,  426. 
Dollard  v.  Roberts,  288. 
Dolph  V.  Hand,  412. 
Dolphin  V.  Robins,  58. 
Donahoe  v.  Richards,  287. 
Donahue  v.  C.  H.  Buck  &  Co.,  527. 
Donald  v.  City  of  Ballard.  384. 

V.  Donald,  194. 
Donegan  v.  Davis,  281,  282,  289. 
Donehoo's  Appeal,  459. 
Donk  Bros.  Coal  &  Coke  Co.  v.  Thil, 

527. 
Donnelly  v.  Strong,  10,  11. 
Donnington  v.    Mitchell,    102. 
Donovan  v.  Donovan,  11,  12. 

V.  Olson,  154. 


Donovan's  Appeal,  163L 
Doran  v.  Smith,  433. 

V.  Thomsen,  541. 
Dorman  v.  Ogboume,  326. 
Dorsey  v.  Goodenow,  186. 

V.  Kyle.    470. 

V.  Thompson,  469,  470. 
Doty  V.  Mitchell,  144. 
Dougherty  v.  Kubat,  468. 
Doughty  V.  Doughty,  227,  229. 

V.  Penobscot    Log    Driving    Co., 
534. 
Douglas'  Appeal,  333,  361. 
Douglass  V.  Ferris,  365. 

V.  Low,  366. 

V.  Merchants'  Ins.  Co.,  482. 
Dow  V.  Eyster,  136. 
Dowling  V.  Allen.  427,  516. 

V.  Feeley,  335. 
Downing  v.  Peabody,  357. 

V.  Stone,  423,  424. 
Doyle,  In  re,  442, 

V.  Doyle,  206. 
Drake  v.  John  N.  Robins  Co.,  525. 

V.  Wise,  410. 
Drake's  Lessee  v.  Ramsay,  406. 
Drane  v.  Bayliss,  363. 
Draper  v.  Draper,  269,  274. 
Drawdy   v.    Hesters,   37. 
Dreutzer  v.  Lawrence,   112,  154,  157, 

160. 
Drew  V.  Sixth  Ave.  R.  Co.,  541. 
Driscoll  V.  Carliu,  541. 
Droge  V.  John  N.  Robins  Co.,  528. 
Drowne's  Estate,  In  re,  324. 
Drummond  v.   Irish,  28,  29. 
Drury  v.  Foster,  116. 
Drybutter  v.  Bartholomew,  105. 
Dube  V.  City  of  Lewiston,  582. 
Dublin   &   W.   R.   Co.   v.    Black,  402. 
Dubois  V.  Jackson,  151. 
Dubose  V.  Wheddon,  400. 
Duckett  V.  Pool,  537. 
Duckworth  v.  Johnson,  298. 
DufC  V.  Russell,  504. 
Duffee  V.  Boston  Elevated  R.  Co.,  75, 

77. 
Duffles  v.  Duffies,  83. 


Duffy  V.  Upton,  531. 

V.  Williams,  333. 

V.  Yordi,  311. 
Dufield  V.  Cross,  278,  288. 
Duke  of  Beaufort  v.  Berty,  33a 
Dull   V.    Bramhall,   510. 
Dumain  v.  Gwynne,  268,  276. 
Dumaresly  v.  Fisbly,  82,  33,  85,  87,  48. 
Dumond  v.  Magee,  100,  101. 
Duncan  v.  Duncan,  34,  35,  37,  77. 

V.  Pope,  249. 
Dundas  v.  Dntens,  175,  176. 
Dunham  v.  Dunham,  227,  22& 
Dunkell  v.  Simons,  493,  494. 
Dunkin  v.  Seifert,  273. 
Dunks  V.  Grey,  261,  262. 
Dunlap  V.  Allen,  480,  481. 

V.  Hill,  167. 

279. 
&    F.    G.    By.    Co., 


Dunn  V.  Altman, 

V.  Cass   Ave. 
293,  294. 

V.  Dunn,  194. 

V.  Nicholson,   511. 

V.  People,  454. 

V.  Sargent,  99,  151,  152. 

V.  Stowers,  158. 
Dunscomb  v.  Dunscomb,  350. 
Dunton  v.  Brown,  387,  390,  405. 
Dupre  V.  Boulard's  Efct'r,  49. 
Durant  v.  Durant,  217,  218,  220. 

V.  Ritchie,  123.  ' 

V.  Titley,  186. 
Durden  v.  Barnett,  289,  295. 
Duren  v.  Getchell,  160. 
Durett  V.  Com.,  352. 
Durfee  v.  Abbott,  411. 
Durling  v.  Hammar,  343. 
Durocher  v.  Degre,  49. 
Dutton  V.  Dutton,  186. 
D  avail  V.  Bank,  99. 

V.  Graves,  388. 
D^nnelle  v.  New  York  Cent.  &  H.  R. 

11.   Co.,  544,  545. 
Dwyer  v.  Dwyer,  205. 
Dye  V.  Kerr,  309. 
Dyer  v.  Brannock,  32,  33,  237. 

V.  Pierce,  154. 
Dysart  v.  Dysart,  193,  196. 


CASES   CITED.  573 

[Th«  figures  refer  to  pages.] 

E 

E ,  V.  T 26. 

Eager  t.  Qrimwood,  299. 

Eagle  Fire  Ins.  Co.  v.  Lent,  415. 

Elames  t.  Sweetser,  131. 

V.  Woodson,  36,  37. 
Earl  V.  Dresser,  360,  36L 

T.  Godley,  52. 
Earle  v.  Dawes,  237. 

V.  Peale,  399. 

T.  Reed,  390,  400. 
Eason  v.  S.  &  E.  T.  Ry.  Co.,  526. 
Eastes  v.  Eastes,  193. 
Eastland  v.  Burchell,  131,  132,  134. 
East  Tennessee,   V.    &   G.    R.   Co.   v. 
Cox,  77. 

V.  Staub,  484. 
Eaton  V.  Eiaton,  9,  30,  445,  446. 

V.  European  &  N.  A.  Ry.  Co.,  548. 

V.  Hill,  432. 
Eaton's  Adm'r  v.  Perry,  459. 


Bbbetts'  Case,  402. 

Eberts  v.  Eberts,  365. 

Eckstein  v.  Frank,  434. 

Eddy  V.  Co-operative  Dress  Ass'n,  499. 

Edgar  v.  Castello,  297. 

Edgerly  v.   Whalan,   178. 

Edington  v.  St.  Louis  &  S.  F.  R.  Co., 

516. 
Edmonds  v.  Morrison,  344. 
Edmondson  v.  Machell,  537. 
Edmonson's   Estate,   In   re,   326,   370. 
Edmunds  v.   Davis,  331. 

V.  Mister,  409. 
Edwards,  Elx  parte,  325. 
Edwards,  In  re,  274. 

V.  Countess  of  Warwick,  170. 

V.  Crume,  261. 

V.  Davis,  254,  31L 

V.  Freeman,  310. 

V.  Green,  206. 

V.  I^vy,   496. 

V.  Stacey,  161. 
Edwards'  Estate,  In  re,  45,  274. 
Efifray  v.  Effray,  185. 
Egbert  v.  Greenwalt,  85,  86,  238,  242. 
Eggerth  v.  Eggerth,  196,  219. 
Eichelberger  v.  Gross,  373,  374. 


574 


CASES  CITED. 
[The  figures  refer  to  pages.] 


Eichelberger'8  Appeal,  344. 
Eichengreen  v.  Louisville  &  N.  K..  R. 

Co.,  541. 
Eictioff's  Estate,  In  re,  29. 
Eickhoff  V.  Sedalla,  W.  &  S.  Ry.  Co., 

290. 
Eidenmuller  v.  Eidenmuller,  199. 
Eighmy  v.  Brock,  308. 
Eiler  v.  CruU,  131,  132. 
Eisenberg  v.  Fraim,  517. 
Ela  V.  Brand,  255,  257,  258. 

V.  Ela,  365. 
Elder  v.   Schumacher,  444. 
Elderton  v.  Emmens,  501,  503. 
Eldridge  v.  Atlas  Steamship  Co.,  524. 

V.  Preble,  151. 
Eldriedge  v.  Hoefer,  389. 
Elgin's  Guardianship,  In  re,  369. 
Eliot  V.  Eliot,  20,  21,  23. 
Eliott  V.  Gower,  146,  147. 
Ellegard  v.  Ackland,  541. 
Ellington  v.  Beaver  Dam  Lumber  Co., 
531. 
V.  Ellington,    291,    292,    297,    290, 

303. 
V.  Harris,  93. 
Eniington's  Adm'r  v.  Harris,  153. 
Elliot  Y.  Collier,  310. 
Elliott  V.  Cale,  109. 
V.  Elliott,    55. 
V.  Gurr,  21,  40. 
V.  Hawley,  91,  121,  122. 
V.  Horn,  392. 
V.  Wanamaker,  4M. 
Ellis  V.  Alford,  412. 
V.  Ellis,  173,  399. 
V.  Hatfield,  249. 
V.  Priprietors,  359. 
Ellis'  Estate,  In  re,  189,  216,  227. 
Ellison  V.  Martin,  227. 
El  Paso  &  S.  W.  Ry.  Co.  v.  Smith,  527. 
Elrod  V.  Lancaster,  341. 

V.  Myers,  397. 
Elsam  V.  Faucett,  86. 
Elwell  V.  Martin,  435. 

V.  Roper,  509. 
Elzas  V.  Elzas,  204. 


Elmerson,  Appellant,  363. 
V.  Shaw,  28. 
V.  Spicer,  355. 
Emerson-Talcott  Co.  v.  Knapp,  91. 
Emery  v.   Gowen,  290,  291,  292,  300, 
301. 

V.  Kempton,  483. 
Emmett  v.  Bmmett,  467. 

V.  Norton,    133,    134. 
Emmons  v.  Murray,  410. 

V.  Stevane,  66. 
Engelbert  v.  Troxell,  420. 
England  v.  Garner,  385. 
Englehardt  v.  Yung,  255,  258. 
Eugle  V.  Simmons,  76. 
English  V.  English,  201. 
Ensign  V.   Ensign,  189,   190. 
Epperson  v.  Nugent.  398. 
Erie  City  Pass.  Ry.   Co.  v.  Schuster, 

427,  429. 
Erie  R.  Co.  v.  Kane,  536. 
Ernst  V.  Hudson  River  R.  Co.,  518. 
Errat  v.  Barlow,  330. 
Erving  v.  Ingram,  508. 
Erwin  v.  Puryear,  151. 
Eschrich,  In  re,  351. 
Eshbach  v.  Eshbach,  194,  201. 
Essery  v.  Cowland,  1G9. 
Estill  V.  Fort,  07. 
Estridge  v.  Estridge,  371. 
Etherington  v.  Parrott,  132. 
Etna,  The,  283. 
Evans  v.  Bennett,  487,  488. 

V.  Crawford      County      Farmers' 
Mut.  Fire  Ins.  Co.,  127. 

V.  Davidson,  541,  542. 

V.  Evans,   86,    194,   196,   197,    199, 
201. 

V.  Horan,  445. 

v.  Louisville,  N.  O.  &  T.  Ry.  Co., 
53G. 

v.  Morgan,  434. 

V.  Pearce,  254,  257. 

V.  Secrest,  98. 

V.  Walton,  290,  304,  305,  538. 
Evans'  Estate,  In  re,  346. 
Evansich  v.  Gulf,  C.  &  S.  P.  Ry.  Co., 
427,  428. 


CASES  CITED. 
[The  figures  refer  to  pages.] 
Evansville  &  C,  R.  Co,  v.  Wolf,  429.    Faulkner  v.  Davis,  356. 


575 


Evansville  &  R,  R.  Co.  v.  Henderson, 

531,  534. 
Evarts  v.  Nason,  363. 
Evelyn  v.  Templar,  183. 
Everett  v.  Sherfey,  282,  285,  304. 
Everson  v.  Carpenter,  414. 
Ewan  v.  Lippiucott,  546. 
Ewen  V.  Chicago  &  N.  W.  R,  Co.,  429. 
Ewing  V.  Helm,  93. 

V.  Janson,  482,  490. 

V.  Smith,  144. 

V.  Wheatley,  10. 
Exchange  Bank  of  Ft.  Valley  v.  Mc- 
Millan, 408. 
Byre  v.  Countess  of  Shaftsbury,  319, 
328,  36& 


Fagan  v.  Interurban  St.  R.  Co.,  289. 
Fairfax's  Devisee  v.  Hunter's  Lessee, 

467. 
Fairhurst  v.  Liverpool  Adelphi  Loan 

Ass'n,  68,  115. 
Fairmount  &  A.  St.  Pass.  Ry.  Co.  v. 

Stutler,  277. 
Falender  v.  Blackwell,  549. 
Fallon  V.  Mertz,  524. 
Faloon  v.  Mclntyre,  309. 
Farington  v.  Parker,  143. 
Farley  v.  Farley,  15,  16. 

V.  Parker,  444. 
Farmer  v.  Farmer,  219. 
Farmers'  Bank  v.  Boyd,  159. 
Farmer's  Ex'r  v.  Farmer,  366. 
Faruam   v.  Brooks,  443. 
Farnham  v.  Farnham,  196,  218. 
Farnsworth  v.  Farnsworth,  211. 
Farr  v.  Farr,  11. 
Farrar  v.  Bessey,  116. 
Farrell  v.  Dooley,  509. 
V.  Farrell,  282. 
V.  Patterson,    151. 
Farrer  v.  Clark,  325. 
Farrington  v.  Secor,  375. 
Farrow  v.  Wilson,  498. 
Farwell  v.  Boston  &  W.  R.  Corp.,  534. 
V.  Steen,  351. 


Fawcett  v.  Cash,  488. 
Fay  V.  Bm-ditt,  446. 
v.  Hurd,  371. 
V.  Minneapolis  &  St  L.  Ry.  Co., 

530. 
V.  Taylor,  375. 
Fears  v.  Riley,  430. 
Feather  v.  Feather's  Estate,  158. 
Feely  v.  Pearson  Cordage  Co.,  521. 
Fehy's  EState,  In  re,  189,  190. 
Feiertag  v.  Feiertag,  481. 
Feiner  v.  Boynton,  129,  135,  159. 
Feld  V.  Borodofski,  451. 
Felkner  v.  Scarlet,  301. 
Fellows  V.  Fellows,  201. 
Felt  V.  Felt,  229. 
Fender  v.  Powers,  358. 
Feuefe  V.  Boston  &  M.  R.  R.,  541. 
Fenner  v.  Lewis,  127. 
Fenton  v.  Clark,  499,  508. 
V.  Reed,  28,  31,  34. 
V.  White,  400. 
Fereira  v.  Sayres,  498. 
Ferguson  v.  Bell's  Adm'r,  412. 
v.  Bobo,  434,  435. 
v.  Brooks,  70.  72. 
V.  Collins,   67. 
v.  Houston,  B.  &  W.  T.  Ry.  Co., 

389. 
V.  Neilson,  65,  69. 
V.  Smethers,  85,  86. 
V.  Williams,  140. 
Ferlat  v.  Gojon,  41,  43. 
Fernsler  v.  Moyer,  297,  330. 
Fero  V.  Fero,  41. 
Ferren  v.  Moore,  131,  133. 
Ferrers  v.  Ferrers,  217,  219. 
Fetrow   v.    Wiseman,    388,    389,    390, 

409. 
Fettiplace  v.  Gorges,  143. 
Fidelity  Trust  Co.  v.  Butler,  332,  335, 

365,  366. 
Fidelity  Trust  &  Safety  Vault  Co.  v. 

Glover,  352. 
Fidelity  &  Deposit  Co.  v.  M.  Rich  & 

Bros.,  332. 
Field  V.  Campbell,  119,  159. 


576 


CASES   CITED. 


[The  figures  refer  to  pages.] 

Meld  V.  Moore,  356. 

V.  Peeples,  357. 

V.  Schieffelin,  343,  359,  360. 

V.  Torrey,  369,  372. 
Fielder  v.  Harbison,  365. 
Fielding's  Case,  15. 
Fife  V.  City  of  Oshkosh,  76. 
Filbert  v.  New  York,  N.  H.  &  H.  R. 

Co.,  512. 
Fillieul  V.  Armstrong,  495. 
Fincli  V.  Finch,  175,  254,  255. 
Findley  v.  Findley,  375. 
Fink  V.  Furnace  Co.,  427,  428. 
Finley  v.  Finley,  195. 

r.  Richmond    &   D.    R.    Co.,    293, 
295. 
Finn  v.  Adams,  252,  259. 
Finney  v.  State,  326. 
Finnigan    v.    New    York    Contracting 

Co.,  528. 
Firemen's  Ins.  Co.  of  Albany  v.  Bay, 

142. 
First  Nat.  Bank  v.  Sharpe,  52. 
Fischer  v.  Brady,  135. 
Fish,  Appeal  of,  364. 

V.  MarzluCe,  482. 

V.  MUler,  365. 
Fishburn  v.  Burlington  &  N.  W.  Ry. 

Co.,  427. 
Fisher  v.  Kissinger,  415. 

V.  Minegeaux,  525. 

V.  Monroe,  494. 

V.  Mowbray,  388. 

V.  Provin,  110,  111,  112. 
Fishli  V.  Fishli,  201,  203. 
Fisk  V.  Fisk,  10. 

V.  Sarber,  341. 
Fiske  V.  Bailey,  72. 
Fitch  V.  Peckham,  309. 
Fitler  v.  Fitler,  254. 
Fltts  V.  Hall,  430,  433,  434. 
Fitzgerald  v.  Fitzgerald,  205. 

V.  Reed,  447. 

V.  Quann,  70. 

V.  St.  Paul,  M.  &  M.  R.  Co.,  429. 
Fitz-Hugh  V.   Dennlngton,  379. 

V.  Wilcox,  448. 


Fitzmaurice  v.  Buck,  135. 
Fitzpatrick  v.  Fitzpatrick,  21. 
Fitzpatrick  Square  Bale  Ginning  Co. 

V.  Mclvaney,  497,  501. 
Flagg  V.  Bean,  105. 
Flanagan  v.  People,  454,  455. 
Flavell  V.  Flavell,  223. 
Fleek  v.  Zillhaver,  111. 
Fleet  V.  Perrins,  94,  96,  98. 
Fleming  v.  Fleming,  195,  197. 

V.  People,  44. 
Flenner  v.  Flenner,  175,  177. 
Flesh  V.  Lindsay,  65,  66,  68,  69. 
Fletcher  v.  People,  264,  267. 

V.  Walker,  339. 
Flexner  v.  Dickerson,  388,  401- 
Fleytas  v.  Pigneguy,  194,  195. 
Flight  V.  Bolland,  408. 
Flike  V.  Boston  &  A.  R.  Co.,  511,  53a 
Flinn,  In  re,  350. 
Floding  V.  Denholm,  114. 
Flory  V.  Ostrom,  274. 
Flower  v.  Pennsylvania  R.   Co.,  62fl, 

542. 
Floyd  V.  Calvert,  37. 
Fluker  v.  Georgia  R.  &  Banking  Co., 

537. 
Flynn  v.  Prince,   Colliers  &  Marsten 

Co.,  514. 
Fogarty  v.  Southern  Pac.  Co.,  530. 
Foley  V.  Mutual  Life  Ins.  Co.,  318. 
Folger  V.  Heidel,  333. 
Fonda  v.  Van  Home,  317,  318i. 
Foues  v.  Phillips,  517. 
Foot  V.  Card,  77,  84. 
Foppiano  v.  Baker,  298. 
Forbes  v.  Countess  of  Strathmore,  37. 

V.  Reynard,  347. 
Ford  V.  Anderson,  516. 

V.  Danks,  495. 

V.  Fitchburg  K.  Co.,  511. 

V.  Ford,  205,  206. 

V.  McVay,  278. 

V.  Monroe,  297. 

V.  Phillips,   414. 
Foreman  v.  Eagle  Rice  Mill  Co.,  513. 
Fornshill  v.  Murray,  4,  7,  36,  40,  41, 
42,  48. 


CASES  CITED. 
[The  flcurea  r»f*r  to  pagei.] 


577 


Porster  v.  Forster,  201,  213. 

V.  Fuller,  332. 
Forsyth  v.  Hooper,  548,  549. 

V.  McKinney,  495. 
Fort  V.  Gooding,  284. 
Fortinberry   v.   Holmes,   264. 
Fortune  v.  Killebrew,  349. 
Ft.  Wayne,  C.  &  L.  R.  Co.  v.  Haber- 

korn,  506. 
Ft.  Wayne  Trust  Co.  v.  Sihler,  119. 
Foscue  V.  Lyon,  351,  353. 
Foss  V.  Crisp,  468. 

V.  Foss,  12. 

V.  Hildreth,  459. 
Foster  v.  Denny,  370. 

V.  Means,  17,  19. 

V.  President,  etc.,  of  Essex  Bank, 
544. 
Fountain  v.  Boodle,  506. 
Fowler  v.  Chichester,  65,  67,  70. 

V.  Fowler,  196,  198. 

V.  Meadow  Brook  Water  Co.,  459. 

V.  Shearer,  123. 
Fowlkes  V.  Baker,  259. 
Fox  V.  Burke,  238. 

V.  Color  Works,  517. 

V.  Davis,  186. 

V.  Hawkes,  142. 

V,  Southack,  467. 
Frame  v.  Thormann,  51. 
Francis  v.  Francis,  34. 
Franco-Texan  Land  Co.  v.  Chaptive, 

469. 
Frank  v.  Herold,  475,  478. 

V.  Manhattan    Maternity    &    Dis- 
pensary, 488,  489. 
Franke  v.  Franke,  12. 
Franklin  v.  Franklin,  58. 

V.  Lee,  32,  33. 
Franklin's  Adm'r,  Appeal  of,  68. 
Frantz  v.  Frantz,  210. 
Frary  v.  American  Rubber  Co.,  487. 

V.  Booth,  143. 
F^aser  v.  Freeman,  544. 
Fratinl  v.  Caslini,  80,  81. 
Frazier  v.  Massey,  390. 
Frecking  v.  Rolland,  122,  159. 
Fredd  v.  Eves,  133. 

TIFF.P.&  D,Rel,(2d  Ed.)— 37 


Freeburger  v.  Gozzam,  113. 
Freeman,  Appeal  of,  151. 

V.  Boland,  432. 

V.  Bridger,  397,  398. 

V.  Freeman.  194,  198,  309. 

y.  Holmes,  135. 

V.  People,  454. 

V.  Pope,  183. 

V.  Robinson,  253,  259. 
Freestone  v.   Butcher,    126,   129,   181, 

135. 
Freethy  v.  Freethy,  73. 
Freiberg  v.  De  Lamar,  360. 
French  v.  Cresswell,  541. 

V.  Currier,  352. 

V.  French,  195. 

V.  McAndrew,  389,  423. 

V.  Mehan,  111. 

V.  Rollins,  104. 

V.  Sheplor,  343. 
Freret  v.  Taylor,  118. 
Frerker  v.  Nicholson,  546. 
Frescobaldi  v.  Kinaston,  384. 
Freund  v.  Washburn,  360. 
Frick   V.    St.   Louis,   K.   C.   &  N.    Rj 

Co.,  293. 
Friend  v.  Friend,  203. 

V.  Thompson,   82. 
Frierson  v.  Williams,  150. 
Friesner  v.  Symonds,  247,  250. 
Frith  V.   Frith,  12. 
[  Fritts  v.  Fritts,  201. 
Frost  V.  Frost,  110,  111,  154. 
Fruitt  V.  Anderson,  446w 
Fry  V.  Drestler,  87. 

V.  Fry,  101. 
Fryer  v.   Fryer,  35. 
Fuchs  V.  Koerner,  501. 
Fuller  V.  Brown,  499. 

V.  Downing,  487. 

V.  Fuller,  257. 

V.  Hager,  357.  358. 

V.  Jewett,  529. 

V.  Little,   501. 

V.  Naugatuck  R.  Co.,  78L 
Fulton  V.  Fulton,  204,  205. 
Furenes  v.  MIckelson,  408. 
Furlong  v.  Bartlett,  390. 


578 


CASES  CITED. 
[The  figures  refer  to  pages.] 


Furman    v.    Van    SIse,  254,    255,   29t>, 

303. 
Furr  V.  Burns,  358. 
Furrh  v.  McKnight,  286. 
Furth  V.  March,  154. 

G 

G r.  G — ,  27. 

Gabisso,  Succession  of,  49. 
Gaffney  v.  Hayden,  424. 
Gage  V.  Reed,  140. 
Gaillard  v.  Gaillard,  203. 
Gaines'  Adm'x  v.  Poor,  186. 
Gaines,  Succession  of,  325,  426. 
Gale  V.  Gale,  169. 

V.  Parrot,  277,  280,  284. 
Gall  V.   Gall.  29,  36. 
Gall's  Will,  In  re,  37. 
Gallagher  v.  Newman,  528. 
Galleher,  In  re,  274,  316,  324. 
Galligan   v.    Woonsocket   St.    R.    Co., 

276. 
Galveston,  H.  &  S.  A.  Ry.  Co.  v.  Par- 
ish, 513. 
Gandell  v.  Pontigny,  491,  503. 
Gangwere's  Estate,  In  re,  448. 
Gapen  v.  Gapen,  276. 
Gardenhire  v.  Hinds,  272,  273. 
Gardner  v.  Gardner,  217,  220,  403. 

V.  Kellogg,  288. 

V.  Slade,  506. 
Garforth  v.  Bradley,  97,  102,  103. 
Garland  v.  Harrison,  249. 
Garner  v.  Gordon,  329. 
Garretson  v.  Becker,  301. 
Garrett  v.  State,  63. 
Garretzen  v.  Duenckel,  543. 
Garrigue  v.  Keller,  119.  159. 
Garrison  v.  Garrison,  203. 
Garver  v.  Miller,  186. 
Garvin's  Adm'r  v.  Williams,  366. 
Gary  v.  Cannon,  354. 

V.  State,  381. 
Gaska   v.   American   Car  &  Foundry 

Co.,  519. 
Gaskins  v.  Allen,  405,  412. 
Gaspard  v.  Coco,  333. 


Gassaway,  In  re,  380. 
Gatehouse  v.  Gatehouse,  204. 
Gaters  v.  Madeley,  97. 
Gates  V.  Brower,  127. 

V.  Meredith,  452. 
Gathings  v.  Williams,  40,  41. 
Gathman  v.  City  of  Chicago,  535. 
Gault  Lumber  Co.  v.  Pyles,  357. 
Gavin  v.  Burton,  393. 
Gayle  v.  Hayes'  Adm'r,  395. 
Gaylord  v.  Stebbins,  357. 
Gebhart  v.  Gebhart,  153. 
Geer  V.  Hovy,  434. 
Genereux  v.  Sibley,  399,  420,  425. 
George  v.  Goldsby,  97. 

V.  Spencer,  179. 
George  Jonas  Glass  Co.  v.  Glass  Bot- 
tle Blowers'  Ass'n   of  United  States 
6c  Canada,  538. 
Georgia  Pac.  Ry.  Co.  v.  Propst,  427. 
Georgia  R.  &  Banking  Co.  v.  Tice,  78. 
Gerz  v.  Weber,  481. 
Gibbons  v.  Bente,  491. 
Gibbs  V.  Brown,  271. 

V.  Gibbs,  196. 
Gibson,  Appeal  of,  327. 

V.  Fidelity  &   Casualty  Co.,   539. 

V.  Pacific  R.  Co.,  511,  521. 

V.  Soper,  420,  445,  449,  450i 
Gilbert  v.  Gilbert,  202, 

V.  Guptill,  362. 

V.  McEachen,  335. 

V.  Mazerat,  383,  384. 

V.  Schwenck,  338. 
Gilchrist  v.  Bale,  80. 
Giles  V.  Giles,  273. 
Gillespie    v.    Grand    Trunk    Ry.    C5o.j 
514. 

V.  Nabors,  382. 
Gillett  V.  Gillett,  12,  la 
Gilliat  V.  Gilliat,  319. 
Gilliuwaters  v.  Gillinwaters,  205,  207. 
Gllman  v.  Andrus,  128,  135. 

V.  Eastern  R.  Corp.,  515,  534. 
Gilmore  v.  Kitson,  268. 
Gilson  V.  Spear,  433. 
Glnn  V.  Ginn,  276. 
Gipps  V.  Gipps,  214,  215. 


CASES  CITED. 

[The  figures  refer  to  pages.] 


679 


Girls'   Industrial    Home   v.    Fritchey, 

255. 
Gise  V.  Com.,  34, 
GlshwUer  v.  Dodez,  270. 
Gladding  v.  Follett,  258. 
Glaser  v.  National  Alumni,  49G. 

V.  Priest,  326. 
Glass  V.  Bennett,  82,  83. 

V.  Glass,  28,  29,  237,  382. 

V.  Wynn,  198. 
Glassell  v.  Glassell,  351. 
Glean  v.  Glean,  11. 
Gleason  v.  Gleason,  59. 
Glennie  v.  Glennie,  215. 
Glidden  v.  Nelson,  249. 

V.  Strupler,  116. 
Glos  V.  Sanliey,  244. 
Glover  v.   Alcott,  122. 

V.  Bates,   160. 

V.  Glover,  345. 

V.  Ott's  Adm'r,  395,  397. 

V.  Proprietors  of  Drury  Lane,  95. 
Goddard  v.  Grand  Trunk  Ry.  of  Can- 
ada, 544. 
Godfrey  v.  State,  436. 
Goff  V.  Chippewa  River  &  M.  Ry.  Co., 

522. 
Goff's  Guardian  v.  GofC,  350,  351. 
Goldbeck  v.   Goldbeck,  205. 
Golding  V.  Golding,  208. 
Goleman  v.  Turner,  349. 
Gomez  v.  Tracey,  511,  512,  513. 
Gonsior  v.  Minneapolis  &  St.  L.  Ry. 

Co,    531. 
Goode  V.  Goode,  225. 

V.  Harrison,  402. 
Goodenough,  In  re.  273,  276. 
Goodfellow  V.  Boston,  H.  &  E.  R.  Co., 

526. 
Good  Land  Co.  v.  Cole,  122. 
Goodman  v.  Pocock,  501,  503. 

V.  Winter,  356. 
Goodnow  V.  Empire  Lumber  Co.,  405. 
Goodrich  v.  Cushman,  31. 

V.  Goodrich,  196. 

V.  Russell,  467. 
Goodrlght  v.  Moss,  242. 

y.  Straphan,  105. 


(roodrum  v.  Goodrum,  142. 

Goodsell  V.  Myers,  390,  414. 

Goods  of  Dutchess  of  Orleans,  In  re, 

382. 
Goodwin  v.  Thompson,  33. 
Goodyear  v.  Rumbaugh,  152. 
Gordon  v.  Barkelew,  310. 

V.  Chicago,  R.  I.  &  P.  R.  Co.,  525. 

v.  Haywood,  123. 

V.  Miller,  390. 

V.  Potter,  253,  395. 
Gore  V.  Gibson,  459,  460. 

V.  Knight,   143. 
Gorman  v.  State,  56,  264. 
Gornall,  In  re,  325. 
Gospel  V.  Wheeler,  150. 
Goss  V.  Stone,  325. 
Gossrad  Co.  v.  Crosby,  504* 
Gott  V.  Gulp,  333. 
Gould   V.   Carlton,  90. 

V.  Webster,  104. 
Goulding  v.  Davidson,  117. 
Gourlay  v.  Gourlay,  208. 
Government  St.  R.  Co.  v.  Hanlon,  429. 
Governor  v.  Rector,  20. 
Govier  v.  Hancock,  133. 
Grace  v.   Globe   Stove  &  Range  Co., 

517,  518. 
Graecen  v.  Graecen,  194. 
GraeflC  v.  Graeff,  203,  206. 
Graff  V.  Blumberg,  502. 
Graham,  In  re,  30. 

V.  Bennet,  31,  237. 

V.  Dickinson.  106. 
Grandin  v.  Southern  Pac.  Co.,  524. 
Grand  Island  Banking  Co.  v.  Wright. 

159,  162. 
Grand  Rapids  &  I.  R.  Co.  v.  Showers, 

304. 
Grand  Trunk  Ry.  Co.  v.  Ives,  518. 
Granglac  v.  Arden,  307. 
Grannemann  v.  Kloepper,  486. 
Grant  v.  Grant.  179,  193. 

Y.  Singer  Mfg.  Co.,  543. 

V.  Stimpson,  234,  23& 

V.  Sutton,  91. 
Grattan  v.  Grattan,  309,  310. 
Grau  V.  McVicker,  490. 


580  CASBS  CITBID. 

[Tb«  figures  refer  to  pagea.] 

(Iraves  v.  Graves,  201. 

V.  Spedden,  310. 
dray  v.  Durland,   255,  278,  297,  303. 
V.  Fox,  352,  353. 
V.  Gray,  204,  205. 
V.  Lynch,  352. 
V.  Otis,  126. 
Gray's  Appeal,  325. 
Grayson  v.  Lofland,  425. 
GrebiU's  Appeal,  97. 
Green  v.  American  Car,  etc.,  Co.,  478. 
V.  Cannaday,  111. 
V.  Forney.  153,  154. 
V.  Gilbert,  499. 
V.  Green,  237,  401,  416,  420. 
V.  Greenbank,  433. 
V.  Hudson  River  R.  Co.,  79. 
V.  Johnson.  361,  372. 
V.  State,  4,  36. 
V.  Wilding,  387. 
V.  Winter,  353. 
Greenburg  v.  Early,  488. 
Greene  v.   Greene,  58. 

V,  Minneapolis  &  St.  L.  Ry.  Co., 
523. 
Greenhow  v.  Coutts,  172. 
Greensboro  v.  Underbill,  45. 
Greenstine  v.  Borchard,  488. 
Greenwood  v.  Greenvpood,  291. 
Gregg  v.  Gregg,  83,  84,  368. 
Gregory  v.  Lockyer,  138. 
V.  Molesworth,  385. 
V.  Paul,  117. 
V.  Pierce,  117. 
Gregory's    Adm'r    v.    Ohio    River    R. 

Co.,  543. 
Gresham  v.  King,  111,  112. 
Gribben  v.  Maxwell,  447. 
Grler  v.   McLendon,  327. 
Griffin  v.  Collins,  351,  355,  365. 
V.  Griffin,  188. 
V.  Reynolds,  67. 
V.  Sarsfield,  324,  326. 
V.  Stanhope,   174. 
Griffith  V.  Griffith,  194,  212. 
V.  Schwenderman.   390. 
Griffiths  V.  Griffiths,  216. 


Griggs  V.  Swift,  499. 
Grimes'  Estate,  In  re,  319. 
Grimmett  v.  W,itherington,  361. 
Grimsby  v.  Hudnell,  382. 
Grinnell   v.  Wells,  294,  300. 
Grisham  v.   State,  32. 
Grist  V.  Forehand.  360. 
Griswold  v.  Butler,  448. 
V.  Penniman,  97. 
V.  Waddington,  470. 
Groom  v.  Thompson,  311 
Gross  V.  Cadwell,  480. 
V.  Gross,  19. 
V.  Whiteley,  159,  162. 
Grove  v.  Todd,  125. 
Grove's  Appeal,  201,  202. 
Grover  &  Baker  Sewing  Mach.  Co.  v. 

Bulkley.  482. 
Grute  V.  Locroft,  103. 
Guardianship  of  Cardwell,  361. 
Guardians    of    Headington    Union   v. 
Guardians  of   Ipswich   Union,   247. 
Guardians  of  Poor  v.  Nathans,  32,  34, 

36. 
Guest  V.  Edison  Illuminating  Co.,  517. 
Guild  V.  Cranston,  384. 
V.  Guild,  482. 
V.  Hull,  443. 
Guillebert,  Succession  of,  362. 
Gund  V.  Parke,  114. 
Gunn  V.  Hardy,  149. 
Gussart  v.  Greenleaf  Stone  Co.,  527. 
Guthrie  v.  Guthrie,  219. 
V.  Morris,  400. 
v.  Murphy,  397. 
Guthrie  County  v.  Conrad,  254. 
Gutridge   v.    Missouri    Pac.   Ry.   Co., 

512. 
Gwaltney  y.  Cannon,  331. 
Gwin  V.  Vanzant,  371. 

H 

Hackettstown  Bank  v.  Mitchell,  68. 
Haddock  v.   Bank,  352. 

V.  Haddock,  190,  226,  22a 
Hadfield'B  Case,  454. 


CASES  CITED. 
[The  flsurea  reter  to  pages.] 


581 


Hadley  v.  Heywood,  80,  85,  86. 
Hagerty  v.  Lock  C5o.,  424. 
Haggett  V.  Hurley,  119. 
HaggLD  V.  Haggin,  32. 
Haine's  Adm'r  v.  Tarrant,  380. 
Haines  v,  Haines,  223. 
Hair  v.  Avery.  ''^4. 

V.  Hair,  58,  168. 
Hale  V.  Gerristi,  409,  410. 

V.  Sheehan,  482. 
Halett  V.  Patrick,  440. 
Hall  V.  Cone,  365. 

V.  Corcoran,  432. 

V.  Dotson,  163. 

V.  Gabbert,  237. 

T.  Hall,    159,    219,   223,    235,    280, 
281,  286,  308,  309,  311. 

T.  Holland,  293. 

V.  Jones,  422. 

V.  Stork,  324. 

V.  Turner's  Estate,  364w 

V.  Unger,  439. 

V.  U.  S.,  28. 

V.  Warren,  444. 

V.  Weir,  135. 

V.  Young.  98,  106. 
Halley  v.  Trooster,  449. 
Halliday  v.  Miller,  277. 
Halsted  v.  Meeker's  Bx'rs,  352. 
Ham  V.  Ham,  325. 

V.  Toovey,  133. 
Hamaker  v.  Hamaker,  18,  20,  42. 
Hamann    v.    Milwaukee    Bridge    Oo., 

515,  532. 
Hamerick  v.  People,  324. 
Hamilton    v.   Hamilton's   Estate,   82, 
154. 

V.  Love,  495. 

V.  Russell.  171. 
Hamlin  v.  Jones.  93. 

T.  Race,  494. 

V.  Stevenson,  379. 
Hammersley  v.  De  Blel,  177. 
Hammond   v.   Corbett,  277,  278,  803. 

V.  Hammond,  211,  352. 
Hampstead  v.  Plaiatow,  16. 
Hanberry  v.  Hanberry,  190. 


Hanbury  v.  Hanbury,  210. 
Hancock  v.  Merrick,  132. 

V.  Peaty,  19. 
Hands  v.  Slaney,  396. 
Handy  v.  Foley,  65,  67,  68. 

V.  Handy,  223. 
Haney  v.   Caldwell,  489. 

V.  Pittsburgh,  C,  C  &  St  L.  Ry 
Co.,  533. 
Hankins  v.  New  York,  L.  B.  &  W.  R. 

Co,  531. 
Hankinson  v.  Hanklnson,  201. 
Hanley  v.  Drumm,  166. 
Hanna  v.  Granger,  531. 
Hannig  v.  Hannig,  201. 
Hannon  v.  Hounihan,  175,  176,  177. 
Hanrick  v.  Gurley,  468. 
Hansen  v.  Erickson,  509. 
Hanson  v.  European  &  N.  A.  Ry.  Co., 

544. 
Hantz  v.  Sealy,  41. 
Harbeck  v.  Harbeck,  37. 
Harden  v.  Parsons,  351. 
Hardenbergh  v.  Hardenbergh,  59,  110, 

200. 
Hardenbrook  v.  Harrison,  128,  135. 
Hardie  v.  Grant,  133. 
Hardin  v.  Hardin,  207. 
Harding  v.  Alden,  48,  188. 

V.  Cobb.  155,  160. 

V.  Harding,   198,  202. 

v.  Weld,  326. 
Hardy  v.  Chicago,  R.  I.  &  P.  R.  Co., 
516.  517. 

V.  Holly,  144. 

V.  State,  20. 

V.  Waters,  389. 
Harford  v.  Morris,  12,  13. 
Harford  Co.  v.  Hamilton,  297. 
Hargrave  v.  Hargrave,  238,  239,  241. 
Hargi'oves  v.  Thompson,  32,  33. 
Harland,  In  re,  257. 
Harley  v.  State,  467. 
Harmer  v.  Cornelius,  493. 

V.  Killing,  414. 
Harmon  v.  Harmon,  445. 

T.  Old  Colony  R.  Co.,  154, 


582 


Harmon  t.  Smith,  S82. 
Harner  v.  Dipple,  388,  389. 
Harnett  v.  Harnett,  219. 
Harney  v.  Owen.  390. 
Harper  v.  Harper.  199. 

V.  Indianapolis   &  St.   L.   R.  Co, 
515. 

V.  Ida  Portland  Cement  Co.,  527. 

V.  Luffkin,  302. 

V.  Pinkston,  75. 

V.  Utsey,  279,  382. 
Harratt  v.  Harratt,  194. 
Harriman  v.  Pittsburgh,  O.  &  St.  L. 

Ry.  Co.,  428,  541. 
Harrington  v.  Iron  Works  Co.,  499. 
Harrington's  Estate.  In  re,  29. 
Harris  v.  Butler.  300. 

V.  Cannon,  405. 

V.  Carstarphen,  365. 

V.  Harris,   45,   196,  215,  216,  222, 
22S,  372. 

V.  Harrison,  346,  362. 

V.  Hicks,  25. 

V.  Lee,  135,  136. 

V.  Lrouisville,  "N.  O.  &  T.  R.  Co., 
541. 

V.  McElroy,  142. 

V.  Morris,  135. 

V.  Ross,  407. 

V.  Smith,  481. 

V.  Spencer,  155. 

V.  Wall,  410. 

V.  "Webster,  154. 
Harrison  v.  Adcock,  415. 

V.  Bishop,  463. 

V.  Collins,  547,  548. 

V.  Fane,  397. 

V.  Harrison,  12. 

V.  Rowan,  457. 

V.  State,  24,  25,  26,  40,  43,  47,  436. 

V.  Trader,  168. 
Harshaw  v.  Merryman,  131. 
Harshberger's    Adm'r    v.    Alger,    147, 

186. 
Hart  V.  Deamer,  448. 

V.  Gray,  371. 

V.  Hart,  185. 


CASES   CITED. 
[The  figures  refer  to  pages.] 

Hart  V.  Namnbmrg,  512. 

V.  Prater,  395. 

V.  Stribling,  375. 
Harteau  v.  Harteau,  189, 
Hartfleld  v.  Roper,  427,  429. 
Hartman  v.  Dowdel,  98. 

V.  Kendall,  412. 

V.  McCrary,  302,  303. 

V,  Rogers,  490,  502. 
Harttmann  v.  Tegart,  131,  132. 
Hartwell  v.  Jackson,  237. 
Harvard  College  v.  Amory,  351,  352, 

354. 
Harvey  v.  Briggs,  407,  419,  420. 

V.  Can-oll,  45. 

V.  Dunlop,  430. 

V.  Harvey,  223,  335. 
Haskell  v.  Haskell,  272,  273. 

V.  Jewell,  329. 

V.  Sutton,  355. 
Haskell   &  Barker  Car  Co.   v.   Prez- 

ezdzlankowskl,  513,  524,  525. 
Haskins  v.  Royster,  537,  538. 
Hass  V.  Brady,  130. 
Hassard  v.  Rowe,  353. 
Hastings  v.  Dollarhide,  404,  405,  422. 
Hasty  V.  Sears,  526. 
Hatch  V.  Fuller,  301. 

V.  Hatch's  Estate,  410,  411,  414. 

V.  Pike  Mfg.  Co.,  527. 

V.  Straight,  310. 
Hatfield  v.  Sneden,  468. 
Hathaway  v.  Bennett,  488. 

V.  Toledo,  W.  &  W.  R.  Co ,  429. 
Hattersley  v.  Bissett,  311. 
Hauenstein  v.  Lynham,  469. 
Haugh  Ketcham  &  Co.   Iron  Works 

v.  Duncan,  282. 
Hawk  V.  Harman,  65. 
Hawkins  v.  Bone,  460. 

V.  Hawkins,  35,  199. 

v.  Providence   &   W,   R.   Co.,  90. 

v.  Ragsdale,  228. 
Hawkins'  Adm'r  v.  Craig,  93. 
Hawkins'  Appeal,  365. 
Hawley,  In  re,  319. 
Hawthorne  v.  Beckwith,  139. 


CASES   CITED. 
[Tha  figures  refer  to  pages.] 

Hayden  v.  Stone,  329. 
Hayes  v.  Parker,  434. 

V.  Western  R.  Corp.,  53L 
V.  Watts,  41. 
Hayner  v.  Nowlin,  84. 
Haynes  v.  Bennett,  401,  415,  416. 

V.  Nowlin,  84,  85,  87. 
Hayward  v.  Barker,  116. 
V.  Ellis,   340. 
V.  Hayward,  96,  97. 
Head  v.  Briscoe,  65. 

V.  Head,  42,  238,  239,  241. 
Headley  v.  Hoopengarner,  382. 
Headman  v.  Rose,  465. 
Healey  v.  Ballantine  &  Sons,  154. 
Healy  v.  Buffalo,  R.  &  P.  R.  Co.,  512, 

534. 
Heaps  V.  Dunham,  303. 
Heard  v.  Daniel,  338. 

V.  Stamford,  102,  139. 
Hearn,  In  re,  391. 
Hearne  v.  Chadbourne,  484. 
Heath  v.  Heath,  190. 
V.  Stevens,  421. 
V.  West,  413,  417. 
Heather  Children,  In  re,  268,  329. 
Heath's  Estate,  In  re,  362. 
Heaver  v.  Lanahan,  491. 
Hebblethwaite   v.   Hepworth,  31,  34, 

35,  37. 
Heburn  v,  Warner,  146,  147. 
Heckert  v.  Hile's  Adm'r,  237. 
Heckle  v.  Lurvey,  65,  66,  67. 
Hedden  v.  Hedden,  11,  214. 
Hedges  v.  Tagg,  291. 
Hedstrom  v.  Union  Trust  Co.,  547. 
Heermance  v.  James,  80,  201. 
Heffington  v.  Jackson,  390,  395. 
Heffner  v.  Heffuer,  28,  29. 
Heffron  v.  Brown,  309,  481,  482. 
Heilman  v.  Com.,  437. 
Hein  v.  Holdridge,  303. 
Heinemann's  Appeal,  324. 
Helland  v.    Colton    State   Bank,   388, 

389,  405. 
Helm  v.  Wilson,  509. 
Helms  V.  Franciscus,  42. 


583 


Hemmenway  v.  Towner,  238,  240. 
Hemming  v.  Price,  41. 
Hendee  v.  Cleaveland,  341. 
Henderson  v.  Fox,  400. 

v.  Henderson,  195,  198. 

V.  Lightner,  348,  354. 

V.  Stringer,  133. 

V.  Wendler,  66,  67. 
Hendrickson  v.  Woods,  509. 
Hendrix  v.   Richards,  359. 
Henley  v.  Robb,  362. 
Hennies  v.  Vogel,  76.  • 
Henrietta  Coal  Co.  v.  Martin,  532. 
Henry  v.  Henry,  175. 

V.  Root,  388,  389,  409,  410,  412. 
Henson  v.  Walts,  269. 
Hepburn  v.  Dunlop,  467. 
Herbert  v.  Herbert,  48. 
Hermance,  In  re,  325. 
Hernandez,  Succession  of,  30,  51. 

v.  Thomas,  268,  269,  274,  319. 
Herring  v.  Goodson,  326. 

V.  Jester,  290,  300,  302. 

V.  Wickham,  169,  171,  172. 
Hershberger  v.  Lynch,  546. 
Hervey  v.  Moseley,  33,  48. 
Hescht  V.  Calvert,  364. 
Hesketh  v.  Gowing,  250. 
Hess  V.  Adamant  Mfg.  Co.,  538. 
Hesselman  v.  Haas,  247,  380. 
Hessick  v.  Hessick,  174. 
Hetrick  v.  Hetrick,  139. 
Hetzel  V.  Lincoln,  112,  151. 
Hewitt  v.  Long,  270,  273. 
Hewitt's  Appeal,  463. 
Hewitt's  Case,  272. 
Hewlett  V.  George,  265. 
Hexamer  v.  Webb,  548. 
Hey  V.  Prime,  76,  77. 
Heyman  v.  Heyman,  203. 
Heywood  v.  Tillson,  539. 
Hibbard  v.   Heckart,   153,   154. 
Ilibbert  v.  Hibbert,  190. 
Hibernian  Sav.  Inst.  v.  Luhn,  153. 
Hickey  v.  Taaffe,  521. 
Hickman  v.  Hall's  Adm'rs,  399. 
r.  Hickman,  210. 


584 


Hlcka  V.  Cochran,  34,  36. 

V.  Gregory,  250. 

V.  Smith,  24& 
Hiett  V.  Hiett,  185. 
Higgins,  Estate  of,  114. 

In  re,  391. 

V.  Breen,  28,  41. 

V.  Johnson's  Heirs,  113. 

V.  Watervliet  Turnpike  &  R.  Co., 
544. 
Higham  v.  Vanosdol,  80. 
Hightower  v.  Maull,  349. 
Hllbish  V.  Hattle,  22& 
Hildreth  v.  Camp,  67. 
Hiles  V.  Hlles,  389. 
HUl  V.  Anderson,  423,  424. 

V.  Balkcom,  492. 

V.  Chambers,  151,  152. 

V.  Childress,  258. 

V.  Day,  440, 

V.  Good,  25. 

V.  Hill,  186. 

V.  Hunt,  98. 

V.  State,  436. 
Hillebrant  v.  Brewer,  307. 
Hilliard  v.   Hambridge,   99. 

V.  Richardson,  547,  548,  549. 
flills  V.  State,  48. 
Hillsborough  v.  Deering,  253,  254. 
Hilton  V.  Roylance,  6,  9,  31,  35. 
Hilts  V.  Chicago  &  G.  T.  Ry.,  515. 
HinchclifEe  v.  Koontz,  501,  502. 
Hinckley  v.  Probate  Judge,  373. 
Hindman  v.   State,  373. 
Hindrey  v.  Williams,  498. 
Hinds'  Estate,  In  re,  97,  98. 
Hinds  V.  Jones,  65. 

V.  Overacker,  551. 
Hines  v.  Mullins,  257. 
Hinkle  v.  State,  264,  265,  267. 
Hinley  v.  Margaritz,  414. 
Hitchcock  V.  Kichold,  121. 
Hitner's  Appeal,  186. 
Hix  V.  Gosling,  144. 
Hoard  v.  Peck,  77,  78. 
Hochster  v.  De  la  Tour,  480. 
Hodge  V.  Newton,  482. 


CASKS  CITED. 
[Tlic  flffures  refer  to  pages.] 

Hodge  V.  Wetzler,  83. 
Hodges  V.  Pi'ice,  157. 

V.  Windham,  87. 
Hodgkinson  v.  Fletcher,  133,  134. 

V.  Hodgkinson,   85. 
Hodgman  v.  Western  R.  Corp.,  76. 
Hodgson  V.  Macy,  310. 
Hoff  V.  HoCf,  221,  225. 
Hoffman  v.  New  York  Cent.  &  H.  R. 

R.   Co.,  544,  545. 
Hoggatt  V.  Morancy,  317. 
Hoghton  V.  Hoghton,  308. 
Hogle   V.   H.   H.   Franklin   Mfg.    Co., 

543. 
Holbrook  v.  Waters,  97. 
Holcombe  v.  Holcombe's  Ex'rs,  363. 
Holden  v.  Fitchburg  R.  Co.,  534. 

V.  Hardy,  478. 

V.  Holden,  195. 

V.  Pike,  421. 
Holder  v.  State,  33. 
Holeman  v.  Blue,  345. 
Hole  V.  Robbins,  245. 
Hollenbeck  v.  Winnebago  Co.,  547. 
Holley  V.  Chamberlain,  325. 
Holliday  v.   Hively,  142,  144,  150. 

V.  McMillan.  151. 
Hollingsworth  v.  McDonald,  123,  125 

V.  Swedenborg,  253,  278,  282,  283. 
Hollis  V.  Francois,  116. 
Holloway  v.  Holloway,  210. 
Hollweg  V.  Bell  Tel.  Co.,  533. 
Holly  V.  Boston  Gaslight  Co.,  429,  518. 
Holly  St.  Land  Co    v.  Beyer,  113. 
Holmes  v.  Blogg,  421. 

V.  Derrig,  316. 

V.  Dring,  351. 

V.  Holmes,  33,  36,  84,  85,  111,  203, 
223. 

V.  Rice,  388. 
Holmes'  Case,  272. 
Holt  V.  Baldwin,  253. 

V.  Holt,  254,  256. 

V.  Ross,  550. 

V.  Ward  Clarencieux,  21,  390. 
Holtz  V.  Dick,  33,  48,  65,  80,  82,  88. 
Holtzman  v.  Castleman,  254. 


Holyoke  v.  Clark,  360. 

V.  Haskins,  336. 
Home  Fire  Ins.  Co.  v.  Barber,  482. 
Homepathic    Mut.    Life    Ins.    Co.    v. 

Marshall,  146,   147. 
Homer  v.  Schonfeld,  125. 

V.  Thwing,  432. 
Honnett  v.  Honuett,  14. 
Hood  V.  Hood,  ISO,  227. 

V.  State,  226. 
Hooker  v.  Hyde,  482. 
Hooper  v.  Haskell,  75,  78. 

V.  Howell,  97. 

V.  McCaffery,  9. 
Hoopes  V.  Mathis,  113. 
Hoover  v.  Heim,  289. 
Hope,  In  re,  380. 

V.  Hope,  275. 
Hopedale  Maeh.  Co.  v.  Entwistle,  506. 
Hope-Johnstone,  In  re,  166. 
Hopkins,  Bx  parte,  267,  316. 

V.  Atlantic  &  St.  L.  R.  R.,  78. 
Hoppe  V.  Chicago,  M.  &  St.  P.  R.  Co., 

429. 
Hopper  V.  McWhorter,  93. 
Hopps  V.   People,  455. 
Hopson  V.  Boyd,  448. 
Hopt  V.  Utah,  463. 

Horgan  v.  Pacific  Mills,  278,  279,  297. 
Home  V.  Home,  220,  223. 
Horner  v.  Lawrence,  551.  . 

r.  Liddiard,  24. 

V.  Marshall's  Adm'x,  452. 
Hornish  v.  People,  454. 
Hornketh  v.  Ban-,  291. 
Horton  v.  Hill,  121. 

V.  Seaboard  Air  Line  R.,  515. 
Horton's  Appeal,  333. 
Hosford  V.  Rowe,  170,  174. 
Hoskins  v.  Miller,  93,  102. 

V.  White,  425. 
Hosmer  v.  Tiffany,  171. 

V.  Wilson,  490,  491. 
Hoth  V.  Peters,  531. 
Houek  V.  Chicago  &  A.  R.  Co.,  541. 
Hough  V.  Texas  &  P.  R.  Co,  511,  523. 
Houghton  V.  Dickinson,  235,  248. 


CASES   CITED.  585 

[Tbe  figures  refer  to  pages.] 

Houghton  V.  Rice,  83. 
HouUston  V.  Smyth,  132. 
Houlton  V.  Manteuffel,  422. 
House    V.    Alexander,   397,    398,   411, 
413. 

V.  Brent,  357. 

V.  House,  189. 
Houseman    v.     Philadelphia    Transp. 

&  Lighterage  Co.,  546. 
Houston  V.  Brush,  529. 
Houston  Ice  &  Brewing  Co.  v.  Nicol- 

Ini,  482. 
Houston  &  T.   C.   R.   Co.   v.  Turner, 

535. 
Hovey  v.  Hobson,  445,  447,  449,  450. 
Howard  v.   Beldenville   Lumber  Co., 
514,  525. 

V.  Bryant,  97. 

V.  Daly,  490,  501,  502,  509. 

V.  Howard,  28. 

V.  Menifee,  95. 

V.  Moffatt,  99,  lOO. 

V.  Simpkins,  397. 
Howbert  v.  Heyle,  358. 
Howe  V.  Hyde,  311. 

V.  North,  481. 
Howell  V.  Howell,  203. 
Howes  V.  Bigelow,  139. 
Howland  v.   Milwaukee,   L.  S.  &  W. 

Ry.  Co.,  512,  531. 
Howlett  V.  Haswell,  433. 
Howman  v.  Corie,  99. 
Hoxsie  V.  Potter,  275. 
Hoyle  V.  Stowe,  407. 
Hoyt  V.  Casey,  397. 

V.  Fuller,  505, 

V.  Sprague,  341,  3.53,   360,  361. 

V.  Swar.  123. 

V.  Wilkinson,  404,  423. 
Hubbard,  In  re,  327. 

V.  Belden,  499. 

V.  Bugbee,  116,  117. 

V.  Cummings.  412,  417. 

V.  Hubbard.  221.  223. 

V.  Ten  Brook.  550. 
Hubbell  V.  Wheeler,  299. 
Hubble  V.  Fogartie,  65. 


586 


CASES  CITED. 
[The  figures  refer  to  pages.] 


Huber  v.  Huber's  Adm'r,  179,  180. 

V.  Whale  Creek  Iron  Works,  519. 
Hubermaun  v.  Evans,  357. 
Hubert  v.  Traeder,  111. 
Huchting  V.  Engel,  430. 
Huck  V.  Flentye,  480. 
Hudkins  v.  Haskins,  290,  291,  301. 
Hudson  V.  Newton,  332,  335. 
Huff  V.  Ames,  427,  429. ' 

V.  Ford,  546. 

V.  Price,  105. 

V.  Watkins,  538. 
Huger  V.  Huger,  356. 
Huggins  V.  Huggins,  310. 
Hughes  V.  Edwards,  466. 

V.  Hughes,  194. 

V.  Jones,  440. 

V.  People,  351. 

V.  Sellers,  384. 

V.  Smith,  363. 

V.  Toledo  Scale  &  Cash  Register 
Co.,  506. 

V.  Watson,  416. 
Hughes'  Minors'  Appeal,  355. 
Huie  V.  Nixon,  324. 
Huling  V.  Huling,  82,  85,  222. 
Hull  V.  Hull,  12. 

V.  Louth,  449,  450. 

V.  Rawls,  45. 
Hull's  Assignees  v.  Connolly,  397. 
Hulme  V.  Tenant,  141,  145. 
Humphrey  v.  Buisson,  359,  360. 

V.  Bullen,  102. 

V.  Douglass,  431. 

V.  Poke,  80. 
Humphries  v.  Davis,  244,  245,  246. 
Hunn  V.  Michigan  Cent.  R.  Co.,  531, 

532. 
Hunt  V.  De  Blaquiere,  135. 

V.  Hunt,    58,    185,    186,    189,   216, 
226. 

r.  Maldonado,  332. 

V.  Peake,  21,  390. 

V.  State,  373. 

V.  Thompson,  253,  254. 

V.  Wayne  Circuit  Judges,  380. 
Huntenberg,  In  re,  388,  419,  404,  405. 


Hunter  v.  Atkins,  364,  366. 

V.  Bryant,  167. 

V.  Lawrence's  Adm'r,  359. 

V.  Milan,  33. 
Huntington  v.  Claffin,  482. 
Huot  V.  Wise,  80. 
Hurst  V.  Goodwin,  427. 

V.  W.  B.  Thompson  &  Co.,  113. 
Hurt  V.  Southern  R.  Co.,  383. 
Hutchcraft  v.  Shrout's  Heirs,  374. 
Hutcheson  v.  Peck,  80,  82. 
Hutchins  v.  Dixon,  179. 

V.  Dresser,  349. 

V.  Johnson,  349. 

V.  Kimmell,  31,  33,  48. 
Hutchinson  v.  Hutchinson,  332. 

V.  Wetmore,  509. 
Hutton  V.  Hutton's  Adm'r,  186. 
Huyck,  In  re,  242. 
Huyler's   Ex'rs  v.  Atwood,  161. 
H.  W.  Gossard  Co.  v.  Crosby,  504,  505. 
Hyatt  V.  Adams,  77,  78,  79. 
Hyde  v.  Hyde,  6. 

V.  Leisenring,  255. 

V.  S.,  66. 

V.  Stone,  93,  316. 
Hyer  v.  Hyatt,  400. 
Hylton  V.  Hylton,  364. 
Hynes  v.  McDermott,  32,  36. 
H.  &  G.  N.  R.  Co.  V.  Miller,  288,  289. 


Ihley  V.  Padgett,  412. 
Ihl  V.  Forty-Second  St.  &  G.  St.  Fer- 
ry R.  Co.,  29a 
Ihmsen's  Appeal,  352. 
Illinois  Cent.  R.  Co.  v.  Coi,  526. 

V.  Downey,  541. 

V.  Grable,  105. 

V.  Panebiango,  516. 

V.  Spence,  533. 

V.  Tandy,  535. 

V.  Whittemore,  516. 
Illinois  Land  &  Loan  Co.  v.  Bonner, 
238,  388,  407. 


CASES  CITED. 
[The  figures  refer  to  pages.] 


587 


Illinois  Steel  Co.  v,  Saylor,  520. 
V.  Ziemkowski;  527,  535. 

Illinois   Terminal    R.    Co.   v.   Chapin, 
535. 

Imboden    v.    St.    Louis    Union   Trust 
Co.,  a 

Imhoof  V.  Northwestern  Lumber  Co., 
512. 

Imlay  v.  Huntington,  143. 

Imperial  Loan  Co.  v.  Stone,  446. 

Indiana  Car  Co.  v.  Parker,  512. 

Indiana  Match  Co.  v.  Kirk.  182. 

Indianapolis  Brewing  Co.  r.  Behnke, 
119. 

Indianapolis  Traction  &  Terminal  Co. 
V.  Kldd,  77. 

Indianapolis   Union   R.   Co.   v.   Houli- 
han, 536. 

Indiana  Union  Traction  Co.  v.  Pring, 
515. 

Inferior  Court  v.  Cherry,  325. 

Ingalls  V.  Allen,  482. 
V.  Campbell,  319. 

Ingersoll  v.  Ingersoll,  205. 
V.  Jones,   297,   303. 

Ingham  v.  Bickerdike,  370. 

Ingraham  v.  Baldwin,  446. 

Ingram  v.  Ison.  412. 

Ingwaldson  v.  Skrlvseth,  300. 

Inhabitants  of  Alua  v.  Plummer,  133. 

Inhabitants   of   Atkinson  v.   Inhabit- 
ants of  Medford,  17. 

Inhabitants  of  Bueksport  v.  Inhabit- 
ants of  Rockland,  4i». 

Inhabitants  of  Charleston  v.  Inhabit- 
ants of  Boston,  312. 

Inhabitantfs   of   Dedham    v.    Inhabit- 
ants of  Natick,  255. 

Inhabitants  of  Dennysville  v.  Inhab- 
itants of  Trescott,  281,  312. 

Inhabitants  of  Freetown  v.   Inhabit- 
ants of  Taunton,  312. 

Inhabitants  of  Goshen  v.  Inhabitants 
of  Richmond,  19. 

Inhabitants  of  Hiram  v.   Pierce,  33, 
48,  50,  237. 

Inhabitants    of    Medway    v.    Inhabit- 
ants  of  Needham,  4t>-50. 


Inhabitants  of  Mlddleborough  v.  In- 
habitants of  Rochester,  17,  19,  41. 

Inhabitants  of  Monson  v.  Inhabitants 
of  Palmer,  235. 

Inhabitants  of  Phillips  v.  Inhabitants 
of  Madrid,  51. 

Inhabitants  of  St.  George  v.  Inhabit- 
ants of  Deer  Isle,  283. 

Inhabitants  of  Sturbridge  v.  Franklin, 
131. 

Inhabitants  of  Taunton  v.  Inhabit- 
ants of  Plymouth,  282,  425. 

Inhabitants  of  Town  of  Goshen  v.  In- 
habitants of  Stonington,  43. 

Inhabitants  of  Town  of  Milford  v. 
Inhabitants  of  Town  of  Worcester, 
32. 

Inhabitants  of  Unity  v.  Inhabitants 
of  Belgrade,  19,  41. 

Inhabitants  of  Wells  v.  Inhabitants 
of  Kennebunk,  282. 

Inhabitants  of  West  Cambridge  v.  In- 
habitants of  Lexington,  49. 

Inhabitants  of  West  Gardiner  v.  In- 
habitants of  Manchester,  281. 

Inhabitants  of  Winslow  v.  Inhabit- 
ants of  Troy,  19. 

Inland  Steel  Co.  v.  Kachwinski,  521. 

Insurance  Co.  of  Tennessee  v.  Wal- 
ler, 124. 

International  Harvester  Co.  v.  Boat- 
man, 487,  494. 
V.  Campbell,  482. 

International  Mercantile  Marine  Co. 
V.  Fleming,  512. 

International  Text  Book  Co.  v.  Dor- 
an,  395,  419. 
V.  McKone,  400. 

Irby  r.  State,  436. 

Iron  Age  Pub.  Co.  v.  Western  Union 
Tel.  Co.,  504. 

Irvine  v.  Irvine,  389,  401,  403,  406, 
412,  416. 

Irwin  V.  Dearman,  297,  301,  303. 
V.  Irwin,  273,  274. 

Isaacs  V.  Davies,  491,  503. 
V.  Isaacs,  167,  168. 
V.  Taylor,  326,  338. 


588 


CASES   CITED. 
[The  figures  refer  to  pages.] 


Isaacs  V.  Third  Ave.  R.  Co.,  544. 
Ison  V.  Ison,  310. 
Isphording  v.  Wolfe,  11»,  158. 
Ives  V.  Harris,  144. 

V.  McNlcolI,  235. 
Ivey  V.   Bessemer  City  Cotton   Mills, 

486,  498. 
Izard  V.  Middleton,  175. 


J 


Jack's  Appeal,  354. 
Jackson  v.  Banister,  82. 

V.  Beach,  467,  47L 

V.  Burchin,  407. 

V.  Carpenter,  415. 

V.  Claw,  28. 

V.  Collins,  248. 

V.  Combs,  306. 

V.  Fitz  Simmons,  468. 

V.  Green,  468. 

V.  Gumaer,  443. 

V.  Jackson,  4S,  50,  151,  249,  351. 

V.  Kirby,  65. 

V.  McConnell,  103,  111. 

V.  New  York  Post  Graduate  Med- 
ical  School  &  Hospital,  497. 

V.  O'Rorke.  355. 

V.  Pittsburgh.  C,  C.  &  St.  L.  Ry. 
Co.,  298. 

V.  Sears,  344. 

V.  Southern  Ry.,  526. 

V.  Stevens,  179. 

V.  Winne,  14.  32,  34,  35,  37. 
Jacksonville   Electric  Co.  r.  Adams, 
429. 

V.  Sloan,  522. 
Jacobia  v.  Terry,  334. 
Jacobs  V.  Jacobs,  167. 

V.  Tobelman,  219. 
Jacobson  v.  Hobart  Iron  Co.,  52L 
James,  Ex  parte,  340. 

V.  Allen  Co.,  503. 

v.  Christy,  297. 

T.  James,  202. 

V.  Leroy,  279. 

T.  Taylor,  107,  120. 


Janes  v.  Janes,  28. 
Jaques      v.      Methodist      Episcopal 
Church,  141,   143,  144. 

V.  New  York  M.  E.  Church,  146. 
Jarret  v.  Andrews,  336. 
Jarrett  v.   State,  325. 
Jason  V.  Jervis,  174. 
Jayne  v.  Sebewaing  Coal  Co.,  513. 
Jaynes  v.  Jaynes,  85. 
Jee  V.  Thurlow,  186. 
Jeffrey  v.  Bigelow,  541. 
Jefts  V.   York,  550. 
Jelineau  v.  Jelineau,  43. 
Jemnienski  v.  LiObdell  Car  Wheel  Co., 

519. 
Jeneson  v.  Jeneson,  443. 
Jenkins  v.  Flinn,  121. 

V.  Jenkins'  Heirs,  19. 

V.  Long,  487. 

V.  Richmond  &  D.  R,  Co.,  534. 

V.  Tucker,  137. 

V.  Walter,  339,  340. 
Jenne  v.  Marble,  157. 
Jenner  v.  Morris,  136. 
Jenners  v.  Howard,  444,  460. 
Jenness  v.  Emerson,  277. 

V.  Jenness,  195. 
Jenney  v.  Alden.  280. 
Jenning  v.  Rohde,  307. 
Jennings  v.  Camp,  509. 

V.  Copeland,  373,  374. 

V.  Davis,  179. 

V.  Jennings.  204,  360. 

V.  Lyons,  498. 

V.  Philadelphia,  B.  &  W.  Ry.  Co.. 
525. 

V.  Rundall,  69,  431.  432. 
Jensen  v.  Kyer,  520,  r)23. 
Jerome  v.  Queen  City  Cycle  Co.,  497- 
Jervoise  v.  Silk,  257. 
Jessop  V.  Jossop,  216. 
Jessup  V.  Jessup,  440. 
Jewell  V.  Colby,  451. 

V.  Jewell,  31. 
Jewett,  Ex  parte,  ;^t6. 

V.  Jewett,  211. 
Jewsbury  v.  Newbold,  131,  135^ 


CASES   CITED. 
[The  figures  refer  to  pages.] 


689 


Jewson  V.  Moulson,  98. 

J.  G.  V.  H.  G.  20,  42. 

Jincey  v.  Winfield's  Adm'r,  480. 

Joest  V.  ■Williams,  460. 

Johns  V.  Emmert,  328. 

V.  Johns,  14,  196,  223. 
Johnson.  In  re,  323. 
V.  Allen,  81. 
V.  Bennett,  106. 
V.  Bicknell,  278. 
V.  Boston  Towboat  Co..  529. 
V.  Boston   &  M.   R.   R.,  524,   534, 
V.  Copeland's  Adm'r,  312. 
V.  Cummins,  147,  149,  163,  164. 
V.  Far  West  Lumber  Co.,  521. 
V.  Gallagher,  145,  146,  147. 
V.  Johnson,  45,  194,  199,  202,  217, 

218,  219,  326,  363. 
V.  Johnson's  Adm'r,  4,  33,  48,  52. 
V.  Johnson's  Committee,  96. 
V.  Kincade,  42,  43. 
V.  Lines,  395,  397. 
V.  McKeown,  66,  67. 
V.  Medlicott,  460. 
V.  Northwestern   Mut.    Life   Ins. 

Co.,  418,  419,  421. 
T.  Phifer,  439. 
V.  Pie,  434. 
T.  Pye,  431. 
T.  Silsbee,  282,  286. 
V.  Smallwood,  260. 
V.  Spear,  525. 
T.  State,  264,  265,  437. 
.V.  Storie,  406. 
T.  Sumner,  130,  131,  134. 
V.  Terry,  259,  269,  275. 
T.  Water  Co.,  480,  531. 
V.  Western  &  A.  R.  Co.,  547. 
V.  Williams,  136. 
Johnson's    Adm'r   v.    Johnson's   Ex'r, 

317. 
Johnston  v.  Coleman,  333,  335. 
V.  Disbrow,  86. 
▼.  Gerry,  406. 
V.  Sumner,  128. 
Johnston's  Adm'rs  v.  Johnston,  98. 
Johnstone    r.    Beattie.   312,   324,   325, 
327,  336. 


Johnstone  v.  Mappin,  177. 
Joliet  Mfg.  Co.  V.  Dice,  506. 
Jolly  V.  Rees,  128,  129. 
Jonas  V.  Field,  497. 
Jones  V.  Blocker,  537,  538. 
V.  Bond,  349. 
V.  Bowman,  324. 
V.  Brewer,  332. 
V.  Carter,  105. 
V.  Clifton,  142,  180. 
V.  Colvin,  397. 
V.  Crosthwaite,  158. 
V.  Davenport,  97. 
V.  Dunton,  503. 
V.  Jones,  27,  37,  150,  196,  202,  225, 

226,  228. 
V.  Judd,    498. 
V.  McMasters,  467. 
V.  Patterson,  104. 
V.  Phfi  nix  Bank,  390. 
V.  Plummer,  106. 
V.  Powell,  325. 
T.  Reddick,  36. 
V.  R.   J.   Reynolds   Tobacco    Co., 

514. 
V.  State,  437. 
T.  Tevis.  305. 

V.  Transportation  Co.,  490. 
T.  Valentines'  School  of  Telegra- 
phy, 388,  399,  400,  419. 
V.  Ward,  368. 
V.  Wocher,  120. 
Jones'  Appeal,  171. 
Jordan  v.  Coffield,  396,  390. 
V.  Hovey,  299. 
V.  Jackson,  125. 
V.  Jordan,  93. 
V.  Wright,  259. 
Joslin  V.  Grand  Rapids  Ice  Co.,  546. 
Judge    of    Probate    v.    Chamberlain, 
102. 
V.  Toothaker,  375. 
Judkins  v.  Walker,  424. 
Judson  V.  Blanchard,  383,  384. 
Junction  R.  Co.  v.  Harris,  104. 
June  V.  Labadie,  158.  159. 
Justis  V.  English,  143. 
Just  V.  State  Savings  Bank,  102. 


590 


CASES  CITED. 
[Tbe  figures  refer  to  pages.] 


Kahl   V.   Schober,  463. 
Kain  v.  Larkin,  280,  281. 
Kair,  Ex  parte,  478. 
Kampmann  v.  Rothwell,  547. 
Kane,  In  re,  257,  258. 

V.  Babcock    &    Wilcox    Co.,    519, 
527. 

V.  Erie  R.  Co.,  535. 
Kansas  Cent.  R.  Co.  v.  FItzslmmons, 

428. 
Kansas  City,  M.  &  O.  R.  Co.  v.  Loos- 
ley,  548. 
Kansas  Union  Life  Ins.   Co.  v.  Bur- 
man,  501. 
Kantrowitz  v.  Prather,  146. 
Karr  v.  Parks,  287,  289. 
Karr's  Adm'r  v.  Karr,  350,  363. 
Kaspar  v.  People,  374. 
Kath  V.  East  St.  Louis  &  S.  Ry.  Co., 

521. 
Kavanaugb  v.  City  of  Janesville,  79. 
Kay  V.  Whittaker,  105. 
Kaye,  In  re,  323,  324,  325. 
Kayton  v.  Barnett,  u50. 
Keagy  v.  Trout,  96,  97. 
Keane  v.  Boycott,  387,  400,  537,  538. 

V.  Liebler,   509. 
Keaton  v.  Davis,  254. 
Keats  V.  Keats,  219. 
Keeble  v.  Cummins,  443. 
Keech  v.  Enriquez,  249. 

V.  Keech,  59,  204. 
Keedy  v.  Long,  493,  501,  502,  503. 
Keegan  v.  Geraghty,  244. 
Keeler  v.  Fassett,  306. 
Keen  v.  Coleman,  68. 

V.  Hartman,  69. 

V.  Keen,  84. 
Keffe  V.  j\j.iiwaukee  «&  St.  P.  Ry.  Co., 

42& 
Kehr  v.  Smith,  183. 
Keith  V.  Keith,  26. 
Kekewich  v.  Manning,  179. 
Kellar  v.  James,  70. 
Keller  v.  Donnelly,  297,  303. 

V.  Phillips,  127,  128,  129,   131. 


Kelley  v.  Adams,  349. 

V.  Chicago,   St.   P.,   M.    &   O.   R, 
Co.   522. 

V.  Davis,  253,  254,  395. 

V.  Kelley,  42. 
Kellogg,  In  re,  319. 

V.  Adams,  307. 
Kelly  V.  Johnson,  480,  525. 

V.  Kelly,  198. 

V.  Partington,  500. 

V.  Pratt,  468. 

V.  Scott,  40. 

V.  Smith,  325. 

V.  State,   462. 

V.  Tyra,  525. 
Kelly's  Estate,  In  re,  238. 
Kellyville  Coal  Co.  v.  Bruzas,  514. 
Kelsey  v.  Green,  380. 
Kelso  V.  Tabor,  116. 
Kemp  V.  Cossart,  311. 

V.  Downham,  132,  134. 
Kendall  v.  May,  386. 

V.  Miller,  317, 
Kendrick  v.  Neisz,  389,  409,  410,  414. 
Keneflck-Hammond  Co.  v.  Rohr,  534. 
Kenge  v.  Delavall,  115. 
Kenley  v.  Kenley,  29,  196. 
Kennalrd  v.  Adams,  338. 
Kennard  v.  Burton,  288,  289. 
Kennedy  v.  Baker,  413. 

V.  Kennedy,  58,  194,  196,  201,  203. 

V.  McCann,  307. 

V.  New   York   Cent   &   H.    R.    R. 
Co.,  278,  297. 

V.  Shea,  290,  291,  292,  301. 

V.  Swisher,  91,  92.  119. 
Kenney  v.  Baltimore  &  O.  R.  Co.,  305. 
Kenny  v.  Udall,  98,  99,  100. 
Kensington  v.  DoUond,  93. 
Kent  V.  La  Rue,  446. 
Kent  Furniture  Mfg.  Co.  v.  Ransom, 

509. 
Kentzler  v.  Keutzler.  273. 
Kenyon  v.  Farris,  130. 
Kepperly  v.  Ramsden,  547. 
Kerley's  Succession,  114. 
Kern  v.  Kern,  17. 
Kerr  v.  Forgue,  288. 


CASES  CITED. 
[The  figures  refer  to  pages.] 


591 


Kerrigan  v.  Rautigan,  307. 

Kessler  v.  Kessler,  132. 

Ketsey's  Case,  401. 

Kettletas  v.  Gardner,  325,  370. 

Kevan  v.  Waller,  368. 

Key  V.  Harris,  445. 

Key's  Lessee  v.  Davis,  445. 

Keyes  v.  Keyes,  10,  19,  42. 

Keystone    Bridge    Co.    v.    Newberry, 

532. 
Kibblewhite  v.  Rowland,  217. 
Kidd  V.  Montague,  152. 
Klernan,  Matter  of,  336. 
Kies  V.  Young,  140. 
Kiley  v.  Rutland,  R.  Co.,  527,  530. 
Kilgore  v.  Rich,  395,  399. 
Kimball,  Matter  of,  228. 

V.  Cushman,  546. 

V.  Keyes,  133,  134. 

V.  Perkins,  346. 
Klmberley  v.  Holland,  78. 
Kimble  v.   Kimble,   114. 
Kimmey  v.  Abney,  125. 
Kinard  v.  Proctor,  412. 
King  V.  Davis,  149. 

V.  Ford,  524. 

V.  King,  199,  362. 

V.  New   York   Cent.   &   H.   R.   R. 
Co.,  546,  547,  548,  549. 

V.  Seaboard  Air  Line  R.  Co.,  482. 

V.  Talbot,  352,  354. 

V.  Thompson,  76,  78,  79. 

V.  Woodstock  Iron  Co.,  516. 
King's  Estate,  In  re,  310. 
Kinney  v.  Com.,  50. 
Kinnier  v.  Kinnier,  189. 
Kinsey  v.  Feller,  153. 

v.  Kinsey,  55,  202. 

V.  State,    257. 
Klntzinger's  Estate,  In  re,  96. 
Kirby  v.  Taylor,  365. 
Kirk  V.   Middlebrook,  288,  306. 
Kirkham  v.  WTieeler-Osgood  Co.,  382. 
Kirkland  v.  Whatley,  337. 
Kirkman,  Ex  parte,  357. 

V.  Kirkman,  196. 
Klrkpatrlck  v.  Lockhart.  305. 

V.  Metropolitan  St  R.  Co.,  78. 


Kirkwall  v.  Kirkwall,  220. 
Kistner    v.    American    Steel    Found- 
ries, 523. 
Kitchen  v.  Bedford,  178. 

V.  Lee,  390,  417. 
Klaus  V.  State,  384. 
Kleeman  v.  Collins,  484. 
Klein  v.  Klein,  58,  83,  274. 

V.  Landman,   45. 
Kleinert  v.  Ehlers,  238. 
Klenke's  Estate,   In  re,   110. 
Kline  v.  Beebe,  316,  405. 

V.  Kline,  173,  194,  228. 

V.  L'Amoureux,   397. 
Kline's  Estate,  In  re,  173. 
Klingman  v.  Holmes,  288,  289,  296. 
Klopfer  V.  Bromme,  301. 
Knapp  V.  Crosby,  384. 
Knappen  v.   Freeman,  72. 
Knee,  Ex  parte,  247. 
Knight  V.  Knight,  199. 

V.  Pllmouth,  351. 

V.  Wilcox,    302. 
Knights  Templars'  &  Masons'  Life  In- 
demnity Co.  V.  Crayton,  349. 
Knorpp  V.  Wagner,  521. 
Knott  V.  Cottee,  324. 
Knowack,  In  re,  380. 
Knowlman  v.  Bluett,  250. 
Knowlton  v.  Bradley,  340,  350,  363. 
Knox  V.  Flack,  388. 

V.  Haug,   448. 
Kobogum  V.  Jackson  Iron  Co.,  52. 
Koehler  v.  Buhl,  487. 
Koerner   v.    St.    Louis    Car   Co.,   527» 

528,  535. 
Kohlhoss  V.  Mobley,  87. 
Kohn  V.  Fandel,  509. 
Kol,  In  re,  380. 

Konigmacher  v.  Kimmel,  353,  354. 
Koonce  v.  Wallace,  20,  21. 
Koschman  v.  Ash,  513. 
Kosminsky  v.  Goldberg,  66. 
Kotera  v.  American  Smelting  &  Re- 
fining Co.,  511,  513. 
Kowlng  V.  Manly,  65,  67,  69,  70. 
Kraft  V.  Wickey,  360. 
Kraker  v.  Byrum,  331,  397. 


592 


CASES  CITED. 
[The  figures  refer  to  pagea.] 


Krebs  V.  O'Grady,  117. 
Kremer  v.  Eagle  Mfg.  Co.,  517. 
Kriz  V.  Peege,  149,  153,  159,  162. 
Kroell  V.  Kroell,  166,  168. 
KroesslD  v.  Keller,  86.  87. 
Krom  V.  Schoonmaker,  451,  452. 
Krouskop  V.  Shontz,  163. 
Krueger  v.  Louisville,  N.  A.  &  C.  R. 

Co.,   529. 
Kublman  v.  Wieben,  459. 
Kujek  V.  Goldman,  73. 
Kuklence  v.  Vocht,  71,  72. 
Kupka  V.  Kupka,  203. 
Kurtz  V.  St.  Paul  &  D.  R.  Co.,  327. 
V.  West  Duluth  Land  Co.,  327. 
Kuster  v.  Dickson,  121. 
Kyle  V.  Bamett,  338. 


V.    Lr 


-,  27. 


Lackman  v.  Wood,  284,  286,  382. 

Lacoste  v.  Guidroz,  14. 

Lacy  V.  Getman,  498. 

V.  Pixler,  406,  420,  434. 
V.  Williams,  312. 

Laidley  v.  Central  Laud  ('•..  104,  125. 

Lake  v.  Bender,  113,  114. 

Lake  Erie  &  W.  R.  Co.  r.  Tlerney, 
483,  487,  501. 

Lakenuiu  v.  Pollard,  499. 

I^ke  Shore  &  M.  S.  R.  Co.  y.  Laval- 
ley,  533. 
V.  Spangler,   53P.. 

Lake   Superior  Iron   Co.   v.   Erickson, 
526. 

Lalande  v.  Aldrich,  482,  496. 

Lally  V.  Cantwell,  539. 
V.  Sullivan,  380. 

Lalor  V.  Chicago,  B.  &  Q.  R.  Co.,  524. 

Lamar  v.   Micou,   312,   316,   336,   337, 
345,  351,  3.52,  354. 

Lamb  v.  Harbaugh,  77. 

Lamkln  &  Foster  v.  Le  Doux,  398,  408. 

Lamml  v.  Milford  Pink  Granite  Quar- 
ries, 527. 

Lamphler  v.  State,  62. 

Lampblr  v.  Creed,  93. 


Lancaster  County  Nat.  Bank  v.  Moore, 

447. 
Land  v.  Martin,  219. 
Lander  v.  Seaver,  264. 
Landry  v.  American  Creosote  Works, 

235. 
Lane  v.   Ironmonger,  128. 

V.  Moon,  159. 
Langdon  v.  Clayson,  405. 
Langham  v.  Nenny,  96. 
Laning  v.  New  York  Cent.  R.  Co.,  515, 

519,  530. 
Lanning  v.  Cliicago  Great  Western  R. 

Co.,  535. 
La  u  try  v.  Parks,  509. 
Lapre  v.  Woronoco  St.  R.  Co.,  524. 
La  Riviere  v.  La  Riviere,  52. 
Larkin  v.  Hecksher,  489. 

V.  Woosley,  91,  154. 
Larsen  v.  Johnson,  175. 
Larson  v.  St.  Paul,  M.  &  M.  R.  Co., 

515. 
La  Rue  v.  Gilkyson,  445. 
Lashbrook  v.  Patten,  261. 
Lataillade  v.  Orena,  365,  374. 
Latham   v.   Ellis,  269. 

V.  Latham,  198. 
Lathrop  v.  Smalley's  Ex'rs,  352. 
Laubach  v.  Ceder  Rapids  Supply  Co., 

510. 
Lauber  v.  Mast,  195. 
Laughlin  v.  Eaton,  75. 
Lav.erty  v.  Hambrick,  520. 
Law,  In  re,  345. 

V.  Com.,  436,  437. 
V.  Long,  416. 
Law's  Estate,  In  re,  353. 
Lawder  v.  Larkin,  389,  405,  425. 
Lawler  v.   Androscoggin  R.   Co.,   531, 

534. 
Lawless  v.  Connecticut  River  R.  Co., 

529. 
Lawrence  v.  Willis,  443. 
Lawrence's  Lessee  v.  McArter,  388. 
Lawson  v.  Lovejoy,  411. 

V.  Scott,  247. 
Laws  V.  State,  462. 
Lawyer  v.  Fritcher,  299. 


CASES  CITED. 
[Th»  figures  refer  to  pages.] 


593 


Lea  T.  Lea,  205. 
Leache  v.  State,  455. 
Leach  v.   Hannibal   &   St   J.   R.   Co., 
506.' 

V.  Leach,  198,  212. 
Leacox  v.  Griffith,  406. 
Leary  v.  Boston  &  Albany  R.  R.,  522. 
Leatherberry  v.  Odell,  493,  494,  496, 

497,  501,  502. 
Leave!  v.  Bettis,  369. 
Leavitt  v.  Leavitt,  10,  11.  16,  183. 
Iveaycraft  v.  Hedden,  143. 
Lebanon  v.  Griffin,  311. 
Le  Barron  v.  Le  Barron,  42,  43,  188. 
Le  Blane  v.  Le  Blane,  113. 
Lechmere  v.  Brotheridge,  143. 
Ledwith  v.  Ledwith,  325,  326. 
Lee  V.  Ashbrook,  509. 

V.  Brown,  335,  336. 

V.  Henderson,  114. 

V.  Hodges,  .302. 

V.  Lord,  541. 

V.  Muggeridge,  117. 

T.  Savannah  Guano  Co.,  91,  92. 

V.  State,  9,  36. 

V.  Tandell,  449. 
Lee's  Will,  In  re,  463. 
Leeson  v.  Sawmill  Phoenix,  523. 
Leete  v.  State  Bank  of  St.  Louis,  150, 

152. 
Lefever  v.  Lefever,  369. 
LeFevre  v.  Laraway,  340. 
Legg  V.  Legg,  93,  96. 
Lehigh    &   Wilkes-Barre   Coal    Co.    v. 

Hayes,  512. 
Lehmann  v.  Rothbarth,  322. 
lyeitensdorfer  v.  Hempstead,  415. 
Leith  V.  Leith,  192. 
Lemmon  v.  Beeman,  388,  419,  420. 
Lemon  v.  Hansbarger,  372. 
Lenahan  v.  Pittson  Coal  Mln.  Co.,  478. 
Lenderman  v.  Talley,  9G,  97. 
Lennox  v.  Eldred,  IIG. 
Leokey  v.  Maupin,  103. 
Leonard  v.  Leonard,  210,  448. 

V.  Putnam,   360. 
Leopold  V.  Salkey,  492,  498. 
Le  Roy  v.  Jacobosky,  357. 

TIEF.P.&  D.Rejl.(2d  Eu.)— 38 


Leslie  V.  Bell,  93, 

V.  Lewiston,  429. 
Letot  V.  Peacock,  113. 
Leuppie  v.  Osborn's  Ed'rs,  137. 
Levering  v.  Heighe,  407. 

v.  Levering,  202. 
Levi  V.  Earl,  163. 
Levy  V.  Brown,  114. 
Lewis  V.  Castello,  326. 

V.  Edwards,  332. 

V.  Lewis,  10,  11,  17,  18. 

V.  Littlefleld,  430,  432. 

V.  St.  Louis  &  I.  M.  R.  Co.,  529. 

V.  Seifert,  516.  529,  530,  532. 

V.  Sizemore,  238. 
Lewis'  Estate,  In  re,  91. 
Libby  v.  Berry,  73. 
Liberty  v.  Palermo,  283. 
Libhart  v.  Wood,  494. 
Lichtenberger  v.   Graham,  93. 
Ligare  v.  Semple,  108. 
Lillard  v.  Turner,  146,  147. 
Lilley  v.  Elwin,  494,  495,  508. 
Lillie  V.  Lillie,  211. 
Lilly  V.  Waggoner,  443,  444. 
Limpus  V.   London  General  Omnibus 

Co.,  541. 
Lincecum  v.  Lincecum,  237. 
Lincoln  v.  Buckmaster,  447. 

V.  Lincoln,  38. 
Lindley  v.  Cross,  160. 
Lindo  v.  Belisario,  36. 
Lindsay  v.  Glass,  504. 

V.  Lindsay,  219. 

V.  Oregon  Short  Line  R.  Co.,  77. 
Linebaugh  v.  Linebaugh,  6. 
Line  v.  Lawder,  3G5. 
Lingen  v.  Lingen,  237. 
Linton  v.  Walker,  306,  317,  371,  372. 
Lipsey  v.  Battle,  247. 
Lister's  Agricultural  Chemical  Works 

V.  Pender,  482. 
Litchenstein  v.  Brooks,  501,  502 
Litchfield  v.  Cudworth,  104,  105. 
Little  V.  Duncan,  409,  410. 

V.  Marsh,  96. 
Little  Miami  R.   Co.  v.  Stevens,  533. 

V.  Wetmore,  542. 


594 


CASES  CITED. 
[The  figures  refer  to  pages.] 


Little  Rock  &  Ft.  S.  R.  Co.  v.  Barker, 

298. 
Little  Rock  &  M.  R.  Co.  v.  Barry,  531. 
Livermore  v.  Bemis,  373. 

V.  Ratti,  362,  368. 
Livernois'  Estate,  In  re,  334. 
Livingston  v.  Livingston,  179. 
Lloyd,  In  re,  247. 

V.  Fulton,  175,  182. 

V.  Lloyd,  18,  216. 
Locke  V.  Smith,  40O,  421. 
Lockwood  V.  Corey,  121. 

V.  Thomas,    133. 
Logan  V.  Fairlee,  325,  327. 

V.  Gardner,  389. 

V.  Gay,  333. 

V.  Murray,  291,  299,  303. 
Loker  v.  Gerald,  189,  229. 
London  Guarantee  &  Accident  Co.  v. 

Horn,  539. 
London    &    N.    W.    Ry.    Co.    v.    Mc- 

Michael,  402. 
Long  V.  Booe,  86. 

V.  Fox,  450. 

V.  Long,  10,  12,  366,  375. 

V.  Morrison,  79. 

V.  Norcom,  336. 
Longendyke  v.  Longendyke,  73 
Longino  v.  Delta  Bank,  347. 
Longstreet  v.  Tilton,  349. 
Loomis  V.  Deets,  304. 
Lord  V.  Goldberg,  488. 

V.  Hough,  329. 

V.  Poor,  259,  277,  285. 

V.  Thomas,  491. 
Lioring  V.  Bacon,  374. 
Losey  v.  Bond,  413. 
Lotz  V.  Hanlon,  542. 
Loud  V.  Loud,  186. 
Louis  V.  El  felt,  499. 
Louisville  Belt  &  Iron  Co.  v.  Hart, 

523. 
Louisville,  E.  &  St.  L.  Consol.  R.  Co. 

V.  Hawthorn,  535. 
Louisville,  N.  O.  &  T.  R.  Co.  v.  Con- 

roy,  548. 
Louisville  &  N.  R.  Co.  v.  Brown,  535. 

V.  Collins,  533. 


Louisville  &  N.  R.  Co.  v.  Gillen,  543. 

V.  Pendleton's   Adm'r,  479. 

v.  Shivell's  Adm'r,  524. 

V.  Wyatt's  Adm'r,  524. 
Loux  V.  Loux,  203. 
Love  V.  Logan,  349. 

V.  Love,  110. 

V.  Moynehan,  117. 

V.  Robertson,  113. 
Lovell   V.   House  of   Good   Shepherd, 
2b9. 

V.  Minot,  351,  352,  354. 
Loverlng  v.  Lovering,  214. 
Lovett  V.  Robinson,  121. 
Lowe  V.  Sinklear,  509. 

V.  Walker,  109. 
Lowell  V.  Daniels,  115. 
Lowery  v.  Gate,  432. 
Lowry  v.  Coster,  36. 

V.  Drake's  Heirs,  416. 

V.  Houston,  98. 

V.  State,  374. 
Loyd  V.  Lee,  116. 
Loy  V.  Loy,  283. 
Lucas  V.  Lucas,  179,  196. 

V.  Parsons,  440. 
Luce  V.  Jestrab,  388,  405,  422. 
Lnck  V.  Luck,  273. 
Ludlam  v.  Ludlam,  464,  465. 
Ludwick  V.  Com.,  208. 
Lufkin  V.  Mayall,  423,  424. 
Luhrs  V.  Eimer,  405. 
Lumley  v.  Gye,  537,  538. 

V.  Wagner,  504,  505. 
Lum  Lin  Ying,  In  re,  48,  50. 
Lumsden's  Case,  402. 
Lunay  v.  Vantyne,  244. 
Lunt  V.  Aubens,  325. 
Luppie  v.  Winans,  324. 
Luse  V.  Oaks,  70. 
Lusk  V.   Lusk,  273,   274. 

V.  Patterson,  332. 
Lutz's  Estate,  In  re,  249. 
Lyman  v.  Conkey,  375. 

V.  People,  381. 
Lynch  v.  Doran,  443. 

V.  Knight,  84. 
V.  Nurdin,  427. 


CASES   CITED. 
[The  figures  refer  to  pages.] 


695 


Lynch  v.  Smith,  427. 
Lynde  v.  Budd,  412. 
Lyndon  v.  Lyndon,  12,  13. 
Lyon  V.  Lyon,  10. 
Lyons  v.  Blenkin,  273. 

V.  New  York  City  R.  Co.,  77. 
Lyster  v.  Lyster,   207. 
Lyttle  V.  Chicago  &  W.  M.  Ry.  Co., 
51L 

M 

Maben  v.  Maben,  196,  199. 
McAlister  v.  Olmstead,  369. 
McAllister  v.  Com.,  339. 

V.  Gatlin,  397. 

V.  McAllister,  202. 
McAnally    v.    Hawkins    Lumber    Co., 

160. 
McAnnulty  v.  McAnnulty,  175,  176. 
McBee  v.  McBee,  208. 
McBride  v.  O'Neal,  538. 

V.  Sullivan,  235. 
McCaffrey  v.  Benson,  29. 
McCarthy  v.  Marsh,  468. 

V.  Railroad  Corp.,  283,  290. 

V.  Second    Parish,    549. 
McCartney  &  Sons  Co.  v.  Carter,  159. 
McCarty  v.   McCarty,  45. 

V.  Woodstock  Iron   Co.,  419,  425. 
McCauIey  v.   Elrod,  506. 

V.  Wood,  261. 
McCaull  V.  Braham,  505. 
McCausland's  Estate,  In  re,  34. 
McCaw  V.  Blewit,  310. 
McClain  v.  Davis,  449,  450. 
McClanahan  v.  McClanahan,  310. 

V.  Williams,   416. 
McCleaiy  v.  Menke,  362. 
McClellan  v.  Prison,  138. 
McClenaghan  v.  Brock,  542. 
McClendon  v.  Harlan,  373. 
McClintie  v.  McClintie,  91. 
McCloskey  v.   Cyphert,  281,  285,  286. 
McClurg  V.  Terry,  8,  9,  42. 
McClurg's  Appeal,  55,  203. 
McColligan   v.    Pennsylvania    R.    Co., 
478. 


McConkey  v.  Barnes,  390. 

V.  Cockey,  365. 
McCook  County  v.  Kammoss,  SIL 
McCorkle  v.  Goldsmith,  157. 
.McCormic  v.   Leggett,  404. 
McCormick  v.  Demary,  493. 

V.  Holbrook,    158. 

v.  Littler,  444,   445,   447. 
McCormick  Harvesting  Mach.  Co.  v. 

Zakzewski,  521. 
McCosker  v.  Long  Island  R.  Co.,  528. 
McCoy  V.  McCoy,  204. 
McCrady  v.  Pratt,  260. 
McCreery  v.  Davis,  30,  228. 
McCreery's  Lessee  v.  Somerville,  468. 
McCrillis  v.  Bartlett,  446,  460. 

V.  How,  400. 
McCrocklin  v.  McCrocklin,  187. 
McCubbin  v.  Patterson,  ISO. 
McCue  V.  Garvey,  138. 
McCullough  v.  Finley,  406. 
McCullough    Iron    Co.    v.    Carpenter, 

482,  489. 
McCune  v.  Goodwillie,  422. 
McCurdy  v.  Canning,  112. 
McCutchen  v.  McGahay,  132,  133. 

V.  Roush,  352,  353. 
McDaniel  v.  Mann,  331. 

V.  Whitman,  94. 
McDavid  v.  Adams,  89,  90. 
McDeed  v.  McDeed,  20,  *23. 
Macdonald  v.   Macdonald,  201. 
McDonald  v.  Rozen,  121. 

V.  California    Timber    Co.,    511, 
524. 
Macdonnell  v.  Harding,  339. 

v.  Oceanic  Steam  Nav.  Co.,  517. 
McDonough   v.   Pelham   Hod   Elevat- 
ing Co.,  525. 
McDow  v.  Brown.  302. 
McDowell  V.  Caldwell,  335. 
McDowl  V.  Charles.  99. 
McDowle's  Case,  276. 
McDuff  V.  Beauchamp,  110,  112. 
McDuffee's  Adm'x  v.  Boston  &  M.  R. 
R..  522. 
i  McDuflle  V.  Mclntyre,  359. 


596 


CASES  CITED. 
[The  figures  refer  to  pages.] 


McElfresh  v.  Kirkendall,  67,  70. 
McEllhenny's  Appeal,  363. 
McElligott   V.    Randolph,   529. 
McElroy's  Case,  17. 
McFall  V.  Simons,  380. 
McFarlane  v.  McFarlane,  227. 
McGahay  v.  Williams,  183,  201. 
McGan  v.  Marshall,  415. 
McGee  V.  Cordage  Co.,  529. 
McGeorge  v.  Egan,  126. 
McGiflfert  v.  McGiffert,  192. 
McGill  V.  Demlng,  189,  227. 

V.  McGill,  208. 
McGinnis  v.   Chicago,   B.  I.  &  P.  R 

Co.,  551. 
McGovern  v.  Interurban  R.  Co.,  7ft. 
McGrath,  In  re,  324. 
V.  Bell,  497. 

V.  Texas  &  P.  R.  Co.,  521. 
McGregor  v.  Comstock,  468. 

V.  McGregor,  185. 
McGiiire  v.  Brown,  248. 

V.  People,  386. 
McGurk  V.  McGurk,  217,  219. 
Machado  v.  Bonet,  199. 
McHarge  v.  M.  M.  Newcomer  &  Co., 

547,  549. 
McHenry  v.  Brackin,  48. 
Mcllvain  v.  Scheibley,  25. 
Mclntyre  v.  People,  461,  463. 

V.  Sholty,  451,  452. 
Mclsaac  V.  Adams,  398. 
Mack  V.  Brammer,  360. 
V.  Handy,  208,  209. 
McKamy  v.  Cooper,  434. 
McKanna  v.  Merry,  33],  396,  397,  399, 
McKee  v.  Cunningham,  133. 
V.  Ingalls,  461. 
V.  Reynolds,  157. 
V.  Thomas,  357. 
McKee's  Lessee  v.  Pfout,  105. 
McKeever  v.  Ball,  358. 
McKennan  v.  Phillips,  187. 
McKim  V.   McKim,  271,  272. 
Mackin  v.  Boston  &  A.  R.  R.,  530. 

V.  U.  S.,  209. 
McKinley  v.  Chicago  &  N.  W.  R.  Co., 

fiAA. 


McKinley  v.  McGregor,  126. 
McKinney  v.  Clarke,  4,  16,  17. 

V.  Jones,  349,  358. 
McKinny  v.  State,  437, 
McKnight's  Ex'rs  v.  Walsh,  257. 
McLaughlin  v.  Kemp,  72. 
McLaughlin's  Estate,  In  re,  33,  46. 
Maclay  v.  Love,  163. 
McLean  v.  Longlands,  179. 

V.  Swanton,  468. 
McLemore  v.  Pinkston,  90, 
McLennan   v,  MeLennan,  30,  49,  60. 
McLeod  V.  Board,  16a 
McLoskey  v.  Reid,  360. 
McLoud  V.  State,  241, 
McMahill  v.  McMahill,  255. 
McMahon  v.  Bangs,  525. 

V.  Northern  Cent.   R.   Co.,  430. 
McManus  v.  Crlckett,  543. 
McMillan  v.  Page,  480,  482. 

V.  Vanderlip,  509. 
McMillen  v.  Lee,  253,  254. 
McMinn   v.   Richmonds,  400. 
McMorrow   v.   Dowell,  284. 
McMullan  v.  Dickinson  Co.,  503. 
McMullen  v.  McMullen,  55. 
McMurray  v.  Boyd,  497, 
McMurtry  v.  Fairley,  385. 

V.  Webster,  140. 
McMyn,  In  re,  138, 
McNabb  v.  Clipp,  332. 
McNaghten's  Case,  453,  454. 
McNair  v.  Toler,  469. 
McNeer  v.  McNeer,  151,  152. 
McNemar  v.  Cohn,  71,  127. 
McPhillips  V,  McPhillips,  370. 
McQueen  v.  Fulgham,  70. 
McRae  v.  Battle,  174. 
McShan  v.  McShan,  270, 
McSparran  v.  Neeley,  460. 
McSurley  v.  Venters,  249. 
McVeigh  v,  U.   S.,  469. 
McWhorter  v.  Benson,  350. 
Macy  V.   St.   Paul  &  D.  R,   Co.,  .530. 
Madden's  Adm'r  v.  Chesapeake  &  O. 

Ry.  Co.,  533,  535. 
Madison  County  v.  Johnston,  375, 
Magahay  v.  Magahay,  208. 


CASES  CITED. 
[The  figures  refer  to  pages.] 


597 


Magarahan  v.  Wright,  489. 
Mageau  v.  Great  Northern  R.  Co.,  75. 
Magee  v.  Holland,  2SS,  289,  296,  304, 
305. 
V.  Magee,  277. 
V.  Toland,  94. 
V.  Welsh,  398. 
V.  Young,  5. 
Magida  v.  Wiesen,  508. 
Magill  V.  Magill,  194. 
Magniac  v.  Thompson,  168.   169,  171, 

172.  183. 
Magone    v.   Portland    Mfg.    Co.,    517, 

520. 
Magowan  v.  Magowan,  229. 
Magrath  v.  Magrath,  201. 
Maguinay  v.  Saudek,  254,  297,  303. 
Maguire  v.  Maguire,  4. 
Mahan  v.  Clee,  523. 
Maharajah,  The,  512. 
Maher's  Estate,  In  re,  35. 
Mahnken  v.  Mahnken,  195. 
Mahon  v.  Daly,  501. 
V.  Gormley,  160. 
Mahone  v.  Mahone,  208. 
Mahoney  v.  Park  Steel  Co.,  383. 
Maillefer  v.  Saillot,  49. 
Main  v.  Main,  73. 
Major  V.  Holmes,  118. 
Makarell  v.  Bachelor,  395. 
Maker  v.  Benedict,  261. 
Malcolm  v.  Fuller,  536. 
Malcom  v.  Fuller,  524. 
Mali  V.  Lord,  542. 
Mallory's  Adm'r  v.  Mallory's  Adm'r, 

175,  176. 
Maloney  v.  People,  250. 
Manby  v.  Scott,  132,  133. 
Manchester  v.  Smith,  285. 
Mangum  v.  Brooklyn  City  R.  Co.,  427. 

V.  Peck,  70. 
Mann  v.  McDonald,  340. 

V.  People,  250. 
Manning  v.  Johnson,  389,  420. 
V.  Manning,  3G9,  372. 
V.  Riley,  177. 
T.  Wells,  254,  260. 


Manny  v.  Rlxford,  178. 
Mansfield  v.  Gordon,  407. 

V.  Watson,  460. 
Mansfield's  Estate,  In  re,  370. 
Mansur  v.  Pratt,  384. 
Manvell    v.    Thomson,    290,   297,   300, 

302,  303. 
Manwaring  v.  Powell,  110,  111. 
Maples  V.  WIghtman,  388. 
Mapstrick  v.  Ramage,  508. 
Maraman's  Adm'r  v.   Maraman,   179. 
Marble  Co.  v.  Ripley,  504. 
Marburg  v.  Cole,  112. 
March  v.  Bennett,  354. 
Margetts  v.  Barringer,  142. 
Marheineke  v.  Grothaus,  336. 
Marion  y.  C.  R.  I.  &  P.  R.  Co.,  545. 
Markham   v.    Markham,  503. 
Marklewitz  v.  Olds  Motor  Works,  516. 
Marks  v.  Crume,  13. 

V.  McElroy,  426. 

V.  Marks,  37. 
Marlow  v.  Barlew,  157,  158. 

V.  Pitfeild,  136. 

V.  PItfield,  399. 
Marman's   Adm'r   v.    Maraman,    179. 
Marquette  Cement  Mfg.  Co.   v.  Wil- 
liams, 533. 
Marris  v.  Marris,  215. 
Marsh,  Ex  parte,  168. 

V.  Chickering,  511,  5ia 

V.  Hand,  545,  547. 

V.  Marsh,  199,  206. 

V.  Whittington,  13. 
Marshall  v.  Lane,  110. 

V.  Marshall,  185,  218. 

V.  Cakes,  66,  67. 

V.  Reams.   247,   270,   273. 

V.  Rench.  310. 

V.  Rutton,  115,  168. 

V.  Wing,  3&4. 
Marshall  Field  &.  Co.  v.   McFarlane, 

153. 
Martin  v.  Davis,  353. 

V.  Dwelly,  123,  126. 

V.  Foster's  Ex'r,  369. 

V.  Hunt,  498. 


698 


CASES   CITED. 
[The  figures  refer  to  pages.] 


Martin  v.  Martin,  25,  93,  178,  210. 

V.  Payne,  290,  291,  292. 

V,  Robson,  G5,  70,  71. 

V.  State,  436. 

V.  Tobin,  413. 

V.  Wabash  R.  Co.,  519. 
Martin's  Adm'r  v.  Fielder,  322. 
Martin's  Heirs  v.  Martin,  28. 
Martrick  v.  Linfield,  307. 
Marts  V.  Brown,  361. 
Marvin  v.  Marvin,   14. 

V.  Schilling,   360. 
Marx  V.  McGlynn,  467,  468. 
Mason  V.  Buchanan,  349. 

V.  McNeill's  Ex'rs,  94 

V.  Mason,  74,  372. 

V.  Morgan,  98. 

V.  Wait,  357,  358. 

V.  Wright,  398,  425. 
Massachusetts    General    Hospital    v. 

Fairbanks,  332,  446. 
Massy  v.  Rowen,  142. 
Masten  v.  Masten,  225. 
Masterson  v.  Howard,  469. 
Matchin  v.  Matchin,  192. 
Mather  v.  Brokaw,  492,  508. 
Mathes  v.  Bennett,  350. 
Mathew  v.  Brise,  338. 
Mathews  v.  Cowan,  433. 
Mathewson  v.  Mathewson,  192. 

V.  Phoenix  Iron  Foundry,  7,  31. 
Matteson  v.  New  York  Cent.  R.  Co.. 

77,  78. 
Matthew  v.  Central  Pac.  R.  Co.,  76. 
Matthewman's  Case,  145,  147. 
Matthews  v.  Baxter,  459,  460. 

v.  Missouri  Pac.  Ry.  Co.,  76,  293, 
294. 

V.  Park  Bros.  &  Co.,  494,  495. 

V.  Terry,  505. 

V.  Tiestel,  65. 
Matthewson  v.  Perry,  278,  303. 
Matthiessen  &  Weichers  Refining  Co. 

V.  McMahon's  Adm'r,  447. 
Mattingly  v.  Montgomery,  54L 
Mattlson  v.  Mattison,  42. 
Mattocks  V.  Stearns,  105. 


Mattoon  v.  Cowing,  373,  375. 

Mattox  V.  Mattox,  223. 

Mattson  v.  Minnesota  &  N.  W.  R.  Co., 

429. 
Mauldin    v.    Southern    Shorthand    & 
Business  University,  396,   397,  400. 
Maunder  v.  Venn,  290,  300. 
Maupin's  Ex'r  v.   Dulany's  Devisees, 

336. 
Maurer's  Appeal,  144. 
Mauro  v.  Ritchie,  325. 
Maxsom's  Lessee  v.  Sawyer,  326. 
Maxwell,  Ex  parte,  325. 

v.  Boyd,  256. 

V.  Maxwell,  310. 
May  V.  Calder,  317. 

V.  Duke,  344. 

V.  May,  307.  353,  363,  364. 
Mayberry  v.  Northern  Pacific  R.  Co., 

551. 
Mayer  v.  Davis,  238. 
Mayfield  v.  Clifton,  97,  98. 
Mayhew  v.  Mayhew,  193. 

V.  Thayer,   132,   135. 
Maynard  v.  Hill,  4,  6,  43,  152,  230. 
Mays  V.  State,  252. 
May  ton  v.  Texas  &  P.  R.  Co.,  526. 
Maze's  Ex'rs  v.  Maze,  173. 
Meadows  v.   Meadows,  310. 
Meakings  v.  Cromwell,  468. 
Mears  v.  Blckford,  277. 

V.   Sinclair,  337. 
Medbiu-y  v.  Watrous,  421,  424. 
Medrano  v.  State,  14. 
Meech  v.  Stoner,  76. 
Meeks  v.  Southern  Pac.  R.  Co.,  429. 
Meese  v.  City  of  Fond  du  Lac,  76,  79. 
Mehrhofif  v.  Mehrhofif,  83,  85. 
Meister  v.  Moore,  31,  32,  33,  46,  47. 
Meldowney  v.  Meldowney,  205. 
Mellanson  v.  Mellanson,  55. 
Mellen  v.  Thomas  Wilson  Sons  &  Co., 

529. 
Mellinger's  Adm'r  v.  Bausman's  Trus- 
tee, 152. 
Mellish  V.  Melllsh,  322,  367. 
Mellor  V.  Merchants'  Mfg.  Co..  522. 


CASES   CITED. 
[Tbe  figures  refer  to  pages.] 


599 


Mells,  In  re,  344. 

Menage  v.  Jones,  358. 

Mendelson  v.  Bronner,  482. 

Mendes  v.  Mendes,  368. 

Meraman's  Heirs  v.  Caldwell's  Heirs, 

105. 
Mercantile  Exch.  Bank  v.  Taylor,  158. 
Mercein  v.  People,  270. 
Mercer  v.  Jackson,  282,  296. 

V.  Walmsley,   290,   291,   299,  300, 
302. 
Meredith  v.  Crawford,  424. 
Merrell  v.  Moore,  14,  112,  113. 

V.  Purdy,  153,  157,  158,  163. 
Merrells  v.  Phelps,  374. 
Merriam  v.  Boston,  C.  «&  F.  R.  Co., 
116. 
V.  Cunningham,  399,  433. 
Merrill  v.  Hussey,  284. 
V.  Marshall,  60. 
V.  Smith,  91. 
Merrimack    County   v.    Kimball,  442. 
Merritt  v.   Scott,  170. 
V.  Swinley,  273,  275. 
V.  Wallace,  350. 
Messenger  v.  Messenger,  274. 
Messer  v.  Smyth,  153,  158. 
Metcalf  V.  Cook,  144. 
Metropolitan  Bank  v.  Taylor,  144. 
Mette  V.  Feltgen,  423. 
Metzinger  v.  New  Orleans  Board  of 

Trade,  547. 
Meurin  v.  Kopplin,  382. 
Mewhirter  v.   Hatten,  71,  77,  78. 
Mews  V.  Mews,  179. 
Meyer  v.  Haworth,  116. 
V.  Kinzer,  113. 
V.  Ladewig,  513. 
V.  McCabe,  153. 
V.  Meyer,  15. 
'  Meyers,  Ex  parte,  380. 
Michael  v.  Locke,  353. 
V.  Morey,  169. 
V.  Stanley,  521. 
Michigan  Cent.  R.  Co.  v.  Coleman,  75, 
76,  77,  518. 
V.  Dolan,  515. 


Michigan  Cent.  R.  Co.  v.  Gilbert,  315. 

Michoud  V.  Girod,  340. 

Mickels  v.  Fennell,  40. 

Middlebury  College  v.  Chandler,  395. 

Middleton  v.  Hoge,  410. 

V.  Nichols,  301. 
Mighell  V.  Stone,  301. 
Milage  v.  Woodward,  502. 
Milburne  v.  Byrne,  537. 
Miles  V.  Boyden,  317,  383,  384. 
V.  Chilton,  28. 

V.  Lingerman,  116,  401,  423* 
V.  Williams,  103. 
Mill  V.  Brown,  380. 
Millar  v.  Cuddy,  509,  510. 
Millard  v.  Hewlett,  424. 
Miller  v.  Aram,  98. 
V.  Blackburn,  94. 
V.  Craig,  443. 
V.  Davis,  254,  260. 
V.  Finley,  459. 
V.  Goddard,  508. 
V.  Harris,  319. 
V.  Kelsey,  374. 
V.  Meche,  201. 
V.  Miller,   82,    105,   195,   234,   235, 

236,  237,  276,  309. 
V.  Missouri  Pac.  Ry.  Co.,  533. 
V.  Newton,  143. 
V.  Pennington,  235. 
V.  Sanders,   162. 
V.  Shackleford,  104,  105. 
V.  Simonds,   308. 
V.  Sims,  413. 
V.  Smith,  397,  420. 
V.  State,  61,  62. 
V.  Sweitzer,  67. 
V.  Voss,   143. 
V.  Wetherby,  155,  160. 
Miller's  Estate,  In  re,  101,  353. 
Millsaps  V.  Estes,  390,  419. 
Mills  V.  Graham,  430. 
Milner  v.  Harewood,  344. 
Milroy  v.  Lord.  180. 
Mims  V.  Mims,  192. 
Miner  v.  Miner,  272,  274. 
Mink  V.  State,  242. 


600 


CASES  CITED. 
[The  figures  refer  to  pagea.J 


Minnesota  Loan  &  Trust  Co.  v.  Beebe, 

326. 
Minock  y.   Shortridge,  390,  413,  422. 
Minter  v.  Clark,  372,  374. 
Minvielle,  Succession  of,  27,  38. 
Misselivitz,  In  re,  440. 
Mississippi    Cent.    R.    Co.    v.   Hardy, 

519. 
Missouri,  K.  &  T.  R.  Co.  v.  Hagan, 
513. 

V.  Hendricks,  525,  534. 

V.  Wise,  527,  528. 
Missouri  Pac.   R.   Co.   v.   Behee.  506. 
Mitcliell  V.  Crassweller,  5-42. 

V.  Kingman,  443. 

V.  Otey,  164. 

V.  Robinson,  532. 

-V.  Spaulding,  384. 

V.  Toale,  491. 

V.  Treanor,  131. 
Mitchell's  Case,  402. 
Mitchell's    Distributees    v.    Mitchell's 

Adm'r,  310. 
Mitchinson  v.  Hewson,  66,  140. 
Mitford  V.  Mitford,  99. 
MLxer  V.  Sibley,  469. 
Mizen  v.  Pick,  134. 
Mobile  &  M.  R.  Co.  v.  Clanton,  507. 
Mockey  v.  Grey,  383. 
Modisett  V.  McPike,  80,  81,  83. 
Mohr  V.  Manierre,  358. 

V.  Porter,  358. 

V.  Tulip,  358,  44& 
Mohry  v.  Hoffman,  291. 
Moley  V.  Brine,  390. 
Molony  v.  Kennedy,  93,  143. 

V.  Molony,  59. 
Melton  V.  Camroux,  446,  447. 
Monaghan  v.   School   Dist.   No.   1   of 

Town  of  Randall,  278. 
Monahan  v.  Monahan,  91. 
Monarch  Mining  &  Development  Co. 

V.  De  Voe,  523. 
Moncrief  v.  Ely,  249,  250. 
Mouell  V.  Mouell.  372. 
Monget  V.  Walker,  348. 
Monnln  v.  Beroujon,  366. 


Monroe  v.  Proctor,  502. 
Monson  v.  Crane,  511,  512. 
Montacute  t.  Maxwell,  175,  ITd. 
Montgomery  v.  Gordon,  382. 

V.  Montgomery,  11. 

V.  Smith,  325.  371. 
Moody  V.  Hamilton  Mfg.  Co.,  531. 
Mooers  v.  White,  467. 
Moon  V.  Towers,  2G1. 
Moon's  Adm'r  v.  Richmond  &  A.  B. 

Co.,  529,  533,  535. 
Moor  V.  Moor,  114. 
Moore,  In  re,  319. 

V.  Bullock,  77. 

V.  Cornell,  156,    160. 

V.  Dublin  Cotton  Miils,  518,  61». 

V.  Eastman,  432, 

V.  Flack,  235. 

V.  (; raves,  382. 

V.  Hegeman,  48. 

V.  Hershey,  449. 

V.  Kiiio:  Mfg.  Co.,  582. 

V.  McEwen,  386. 

V.  Moore,  101. 

V.  Nah-con-be.  52. 

V.  St.  Louis  Tr.iuslt  Co.,  S20w 

V.  Sanborne,  547. 

V.  Shields,  350. 

V.  Stancel,  113. 

V.  State,  252. 

V.  Wabash,  St.  L.  &  P.  Ry.  Co., 
524. 

V.  Whitaker,  43. 
Moorsom  v.  Moorsom,  214. 
Moot  V.  Moot,  4,  12. 
Morain  v.  Devlin,  451. 
Moran  v.  Dawes.  537. 

V.  Mulligan,  521. 

v.  Stewart,  244. 
Mordecal  v.  Pearl,  420. 
Morehouse  v.  Cooke,  324. 
Morey  v.  Webb,  540. 
Morgan  v.  Bank,  93. 

V.  Illinois   &   St.   L.   Bridge  Co., 
427. 

V.  Johnson,  340. 

y.  Lones,  114. 


CASES   CITED. 
[Tbe  figures  refer  to  pagea.] 


601 


Morgan  v.  Martin,  83. 

V.  Shelton,  491. 

V.  Smith,  525. 

V.  State,  24. 
Morgenroth  v.  Spencer,  132. 
Moritz  V.  Garntiart,  297,  304. 
Morning  v.  Long,  87. 
Morrell  v.  Morrell,  225. 
Morrill  v.  Aden,  410. 

V.  Palmer,  32. 
Morris  v.  Clay,  443. 

V.  Davis,  241. 

V.  Hastings,  113,  114. 

V.  Martin,  133. 

V.  Morris,  202. 

V.  Warwick,  80. 
Morrison,  Matter  of,  189,  190. 

V.  Holt,  136. 

V.  Kinstra,  341,  343,  357. 

V.  Morrison,    201,    204,    213,    214, 
222,  225. 

V.  San   Pedro,  L.  A.  &  S.  L.   R. 
Co.,  516. 

V.  Sessions'  Estate,  242. 
Morrow  v.  Whitesides'  Elx'r,  94,  139. 
Morse  v.  Crawford,  451. 

V.  Ely,  420. 

V.  Scott,  458. 

V.  Welton,  259,  281,  284,  807. 

V.  Wheeler,  414. 
Mortimer  v.  Mortimer,  185. 

V.  Wright,  253,  395. 
Morton  v.  Detroit,  B.  C.  &  A.  R.  Co., 
519. 

V.  Steward,  388,  400. 
Moses  V.  Fogartie,  131,  135. 

V.  Stevens,  424. 
Mosher  v.  Mosher,  195,  218. 
Moss  V.  Mosley,  520. 

V.  Moss,  12. 
V.  Pacific  R.  R.,  515. 
Mosteller's   Appeal,   309. 
Mott  V.  Mott,  448. 
Moulton  V.  Moulton,  199. 
Monnd  City  Paint  &  Color  Co.  v.  Con- 
Ion,  541. 
Monntfort.  Ex  parte,  324,  330. 


Mowbry  v.  Mowbry,  255,  258. 

V.  Chaney,   78. 
Moyer  v.  Fletcher,  329,  334. 
Moyers  v.  Kinnick,  353- 
Moyer's  Appeal,  97,  98. 
Moyler  v.  Moyler,  195,  198. 
Moynihan  v.  Hills  Co.,  529. 
Mulford  V.  Beveridge,  358. 
Mulhern  v.  McDavitt,  333. 
Mullan    V.    Philadelphia    &    Southern 

Mail  S.  S.  Co.,  532. 
Multer  V.  Knibbs,  82. 
Mulvehall  v.  Millward,  290,  291,  292. 
Mulvey  v.  State,  60. 
Munnerlyn  v.   Munnerlyn,  105. 
Mimsey  v.  Goodwin,  279. 
Munson  v.  Washband,  398. 
Murchison  v.  Green,  44. 
Murdock  v.  Murdock,  173,  174. 
Murph  v.   McCullough,  345,  346,  350. 
Murphy,  Ex  parte,  271. 
Murphy,  In  re,  275. 

V.  Boston  &  A.  R.  Co.,  512. 

V.  Cady,  374. 

V.  Grand  Rapids  Veneer  Works, 
520. 

V.  Murphy,  310. 

V.  Ottenheimer,  259,  260. 

V.  Superior  Court,  373. 

V.  Walker,  353. 
Murray  v.  E'einour,  352. 

V.  Wood,  374. 
Muse  V.  Stern,  .540. 
Musgrave  v.  Conover,  358. 
Musgrove  v.  Kornegay,  278. 
Musselman  v.  Galligher,  71. 
Mussey  v.  Pierre,  468. 
Musson   V.   Trigg,    142,    146,   147,   150. 
Mustard  v.  Wohlford's  Heirs,  389,  401, 

415,  417,  418,  420,  423. 
Mutter  V.  Mutter,  212. 
Mutual  Ben.  Life  Ins.  Co.  v.  Hillyard, 

469,  470. 
Mutual  Life  Ins.  Co.  v.  Hunt,  446. 

V.  Wiswell.  440. 
Myers  v.  Knabe,  447. 

V.  McGavock,  357,  358. 


602 

Myers  v.  Myers,  213,  258. 

V.  Wade,  335. 
Mytton  V.   Mytton,  194. 

N 

Nadau  v.  White  River  Lumber  Co., 

514. 
Nadra  v.  Nadra,  39. 
Nagel  V.  Missouri  Pac.  Ry.  CJo.,  428. 

V.  Nagel,  223. 
Nalll  V.  Maurer,  167. 
Nairn  v.  Prowse,  168. 
Naler  v.  Ballew,  110,  111. 
Nance  v.  Nance,  171,  352,  354. 
Nash  V.  Jewett,  434. 

V.  Nash,  99. 
Nashua  &  L.  R.  Corp.  v.  Paige,  488. 
Nashville,  C.  &  St  L.  R.  Co.  v.  Whe- 

less,  531. 
Nashville  &  C.  R.  Co.  v.  Stames,  545. 
Natchez,  J.  &  C.  R.  Co.  v.  Cook,  297. 
National    Fire    Proofing    Co.    v.    An- 
drews, 522,  527. 
Naugle  V.  State,  374. 
Naylor  v.  Field,  155,  160. 
Neal  v.  Bartleson,  327. 
V.  Gillett,  430. 

V.  Northern  Pac.  R.  Co.,  534. 
V.  State,  264,  265,  266,  436. 
Needham  v.  Bremner,  133. 
Needles  v.  Needles,  96,  97. 
Neely's  Appeal,  174. 
NefC  V.  Landis,  433. 

V.  Neff,  207. 
Neill  V.  Nelll,  373. 
Neil's  Appeal,  248,  249. 
Nelichka  v.  Esterly,  509. 
Nelson  v.  Carlson,  37. 

V.  Green,  323. 
Nesmith  v.  Piatt,  169,  173,  174. 
Netherland-Amerlcan  Steam  Nav.  Co 

V.  Hollander,  293,  295. 
Neves  v.  Scott,  170. 
New  V.  New,  310. 

New  Castle  Bridge  Co.  v.  Steele,  512 
Newell  V.  Fisher,  459. 


CASES   CITED. 
[The  figures  refer  to  pages.] 


New  England  Telephone  &  Telegraph 

Co.  V.  Butler,  528. 
New   Hampshire   Mut.    Fire   ins.   Co. 

V.  Noyes,  398. 
Newkirk  v.  New  York  &  H.  R.  Co., 

492. 
Newlands  v.  Paynter,  93,  142. 
Newman  v.  Kimbrough,  49. 
V.  Newman,  112,  114. 
V.  Reagan,  509. 
New  Orleans,   J.   &  G.   N.   R.   Co.  y. 

Harrison,  526,  544,  545. 
New  Orleans,   St.  L.  &  C.   R.  Co.   v. 

Burke,  544. 
Newport  v.  Cook.  257,  330,  335. 
Newport  News  &  M.  Val.  Co.  v.  Dent- 

zel's  Adm'r,  533. 
Newsome  v.  Newsome,  218. 
Newton  v.  Hatter,  76. 

V.  New  York  Cent.   &   H.   R.   R. 
Co.,  511,  512,  519. 
New  York,  C.  &  St.  L.  R.  Co.  v.  Schaf- 

fer,   506. 
New  York  Life  Ins.   Co.  v.  Thomas, 

486. 
Niagara   Fire  Ins.   Co.   v.  Whittaker, 

488. 
Nichols  V.  Nichols,  192. 
Nicholson  V.  Patchin,  482, 

V.  Spencer,  331,   396,  397. 
V.  Wilbom,  368,  385,  391,  397. 
Nicholson's  Appeal,  370. 
Nickals,  In  re,  360. 
Nickerson  v.  Harriman,  297. 

V.  Nickerson,  73. 
Nickleson  v.  Styker,  302. 
Nlcrosl  V.  Phillippi,  469. 
Nightingale  v.   Withington,   278,   280, 

283,  390,  406. 
Nlles  V.  Hall,  151. 
Nilson  V.  Morse,  490. 
Nine  V.  Starr,  249,  250. 

V.  Ludlam,  79. 
Nixon  V.  Selby  Smelting  &  Lead  Co., 
529. 
V.  Spencer,  284. 
Noel  V.  Ewing,  4,  6. 


CASES   CITED. 
[The  figures  refer  to  pages.] 


603 


Nogees  v.  Nogees,  217,  218. 

Nolce  V.  Brown,  305. 

Nolasco  V.  Lurty,  249. 

Nolin  V.  Pearson,  84. 

Nones  v.  Homer,  484. 

Nonnemacher  v.  Nonnemacher,  18. 

Norcross  v.  Norcross,  32. 

Nordbolt  v.  Nordholt,  392, 

Norfolk  &  W.  R.  Co.  v.  Gesswine,  521. 

V.  Hoover,  531. 
Norman  v.  Norman,  50. 

V.  Southern  R.  Co.,  514,  517. 
Normile  v.  Wheeling  Traction  Co.,  77. 
Norris  v.  Beyea,  152. 

V.  Corkill,  71. 

V.  Harris,  319. 

V.  Kohler,  546. 

V.  Lantz,  116. 

V.  Vance,  414,  434. 
North  Chicago  City  R.  Co.  v.  Gastka, 

544. 
Northern  Cent.  R.  Co.  v.  Husson,  512. 
Northern  Pac.  R.  Co.  v.  Herbert,  519, 

529,  530. 
North  Platte  Milling  &  Elevator  Co. 

V.  Price,  177. 
Northwestern    Mat   Fire   Ins.   Co.   v. 

Blankenship,  447. 
Northwestern    R.    Co.    v.    McMichael, 

401. 
Norton  v.  Cowell,  488,  489. 

V.  Fazan,  133. 

V.  Norton,  26. 

V.  Seton,   26. 

V.  Strong,  368. 

V.  "Warner.  86. 
Norwood  V.  Francis,  121,  122, 
Nowell  V.   Wright,  551. 
Noxon  V.  Remington,  84. 
Noyes  v.  Noyes,  215, 
Nuding  V.   Urich,  91,   92,  154. 
Nugent  V.  Vetzera,  360, 
Nullmeyer  v.   NuUmeyer,  219, 
Nunn  V.  Robertson,   327,  384. 
Nurse  v,  Craig,  133,  167. 
Nyman  v,  Lynde,  288. 


Oaks  V.  Oaks,  113. 

V.  West,  153. 
Oatman  v.  Watrous,  131. 
Obermayer  v.   Greenleaf,   167. 
O'Brien  v.  Rideout,  536. 
O'Connell's  Guardianship,   In  re,  319. 
O'Daily  v.  Morris,   157, 
O'Dea  V,  O'Dea,  228. 
Odeneal  v.  Henry,  497,  502. 
Odom  V.  Bush,  488,  489, 

V,  Odom,  218,  220, 

V,  Riddick,   450. 
Offield  V.  Davis,  32,  33. 
Offley  V,  Clay,  89,  90. 
Ogden  V,  Ogden,  175, 

V.  Prentice,  128. 
O'Hara  v,  McConnell,  385. 
Ohrms  v.  Woodward,  323. 
Oinson  v.  Heritage,  132,  133. 
O'Keefe   v.   Casey,  369. 

V,  Thorn,  521. 
Olcott  V.  Maclean,  466, 
Oldfield   V,   New   York  &   H.   R.   Co., 

298. 
O'Leary  v.  Brooks  Elevator  Co.,  430. 

431. 
Oliver,   Succession  of,  326. 

v.  Oliver.  194,  196,  274. 

V.  Wright,  110,  111. 
Olmstead  v.  Bach,  503. 

V.  Beale,  508. 
Olmsted  v.  Olmsted,  228,  235. 
Olson  V.  Olson,  197, 

V,  St.  Paul,  M,  &  M,  Ry.  Co.,  531, 
O'Neil  V,  Karr,  515, 
O'Neil's  Guardian,  In  re,  370, 
Ongaro  v.  Twohy,  527. 
Oolitic  Stone  Co.  v.  Ridge,  522. 
Ordinary  v.   Dean,  349, 

V,  Helshon,  374, 
Ordway  v.   Bright,  143. 

V.  Phelps.  368. 
Ormsby  v.  Rhoades,  481 
Orr  V,  Brown.  480,  481. 

T.  Hodgson,  467. 


604 


CASES  CITED. 
[The  figures  refer  to  pages.] 


Orthweln  v.  Thomas,  23a 
Ortley  v.  Ross,  52. 
Ortwein  v.  Com.,  454. 
Osborn   v.   Gillett,   297. 

V.  Nelson,  117. 
Osborne  v.  Knox  &  L.  R.  R.  Co.,  526. 

V.  Morgan,  551. 
Ostrander  v.  Quin,  382. 
Otis,  In  re,  355. 

V.  Hall,   333. 
Ottaway  v.  Hamilton,  136. 
Otte  V.  Becton,  258. 
Otto  V.  Long,  112. 

V.  Scblapkahl,   317. 
Otway  V.  Otway,  221,  222. 
Outcalt  V.  Van  Winkle,  99. 
Overland  Cotton  Mill  Co.  v.   People, 

380. 
Overseers  of  Poor  of  Town  of  New- 
bury V.  Overseers  of  Poor  of  Town 
of  Brunswick,  32,  33. 
Overseers  of  Washington  Tp.  v.  Over- 
seers of  Beaver  Tp.,  312. 
Overton  v.  Banister,  434. 

V.  Beavers,  331,  367. 

V.  Overton,   249. 

V.  State,   62. 
Ovitt  V.  Smith,  30. 
Owen  V.  Prink,  491. 

V.  Long,  389,  414. 

V.  Peebles,  350. 

V.  White,  254. 
Owens   V.  Dickenson,   145. 

V.  Gunther,  385. 

V.  Johnson,  146,  147. 

V.  Pearce,  335. 

V.  Snodgrass,  69. 
Oxford  V.  Peter,  544. 
Ozogar    V.    Pierce,    Butler    &    Pierce 

Mfg.  Co.,  528. 
O.  &  W.  Thum  Co.  v.  Tloczynskl,  507. 


P.  V.  S.,  27. 

Pack  V.  Mayor,  etc.,  of  City  of  New 

York,  547. 
Pagan  v.  Southern  Ry.  Co.,  511,  512, 

513,  524,  528,  533. 


Page  V.  Hodgdon,  324. 

V.  Morse,  390. 

V.  Trufant,  186. 
Paine  v.  Hill,  490. 
Pain  V.  Pain,  29. 
Palliser  v.  Gm-ney,  119. 
Palm  V.  Ivorson,  261. 
Palmer  v.  Baum,  290,  290. 

V.  Cheseboro,   355. 

V.  Crook,  80. 

V.  Miller,  401,  415,  422. 

V.  Oakley,   325. 

V.  Palmer,    192,    196,   202. 

V.  Wakefield,  65. 
Pancoast  v.  Burnell,  71. 

V.  Pancoast,  112. 
Pannill's   Adm'r   v.   Calloway's   Com- 
mittee.  327. 
Pantzar  v.  Tilly  Foster  I.  M.  Co.,  532. 
Paramom*  v.  Yardley,  412. 
Parent  v.  Callerand,  155. 
Park  V.  Barron,  30. 
Park  Bros.  &  Co.  v.  Bushnell,  495. 
Parker  v.  Brooke,  142. 

V.  Davis,  448. 

V.  Ibbetson,  488. 

V.  Kane,  157. 

V.  Lechmere,  97. 

V.  Meek.  290,   299,   300,  302,  803. 

V.  Monteith,  301. 

V.  Parker,  17,  18,  201. 

V.  Ricks,  382. 

V.  Seasongood,  546. 

V.  Steed,   140. 

V.  Way,  242. 

V.  Wiggins,  268,  269,  275. 
Parker's  Appeal,  26,  47. 
Parkhurst  v.  Johnson,  517. 
Parmelee  v.   Smith,  306. 
Parnell  v.  Parnell,  18. 
Parry  Mfg.  Co.  v.  Eaton,  527. 
Parsee  Merchant's  Case,  442. 
Parsley's  Adm'r  v.  Martin,   339,  340. 
Parsons  v.  Keys,  400. 

V.  Parsons,  99,  100,  101,  103. 

V.  State,  455. 

V.  Teller,  413. 

V.  Wiuchell,  551. 


CASES  CITED 
[The  figures  refer  to  pages.] 


605 


Parton  t.   Hervey,  20,  21,  33. 
Partridge  v.  Arnold,  280,  286. 

V.  Stocker,  107,  120. 
Passenger  R.  Co.  v.  Young,  544. 
Patterson  v.  Booth,  343. 

V.  Gage,   492. 

V.  Gaines,  29,  38,  41,  238. 

V.  Hayden,   304. 

V.  Kates,  542. 

V.  Nutter,  264,  265,  266. 

V.  Patterson,  153. 

V.  Pullman,  384. 

V.  Thompson,  302. 
Pattison  v.  Gulf  Bag  Co.,  288. 

V.  Jones,  506. 
Patton   V.    Philadelphia   &    New   Or 
leans,  34. 

V.  Thompson,    333. 
Paty  V.  Smith,  357. 
Paul  V.  Davis,  244. 

V.  Frazier,  299. 

V.  Hummel,   261. 

V.  Smith,  398. 
Paulin  V.   Howser,  261, 
Pavlovskl  V.  Thornton,  78. 
Paxton  V.  Paxton,  252. 
Payne  v.  Payne,  205,  211. 

V.  Stone,  353. 

V.  Williams,  82. 
Peacock  v.  Coltrane,  502. 

V.  Cummings,    488. 
Peacock's  Trusts,  In  re,  142. 
Peak  V.  Lemon,  72. 
Pearce  v.  Pearce,  37. 
Pearman  v.  Pearman,  57. 
Pearsall  v.  New  York  Cent.  &  H.  R. 

R.  Co.,  515. 
Pearson  v.  Cox,  549. 

V.  Darrington,   131,  134,  135,  136. 
Pearson's  Case,  463. 
Pease  v.  Pease,  223. 
V.  Roberts,  371. 
Peaslee  v.  Peaslee,  173. 

V.  Robblus,   444. 
Pecararo  v.  Pecararo,  416. 
Peck  V.  Braraan,  372. 

V.  Peck,  34,  35,  37,  166 


Pecos  &  N.  T.  R.  Co.  v.  Blasengame, 

290. 
Pedan  v.  Robb's  Adm'r,  336,  337. 
Pederson  v.  Christofferson,  235. 
Peel  V,   McCarthy,  368. 
Pellage  v.  Pellage,  309. 
Pelzer  v.  Campbell,  149. 
Pendrell  v.  Pendrell,  238,  240. 
Penfield  v.  Savage,  331. 
Penn  v.  Whitehead,  107,  120,  143,  281. 
Pennegar  v.  State,  49,  50. 
Pennington  v.  L'Hommedieu,  322. 
Pennsylvania  v.  Ravenel,  58. 
Pennsylvania  Co.  v.  Dolan,  479,  483. 

V.  LUly,   298. 

V.  Lynch,  511. 

V.  Purvis,  419. 
Pennsylvania  R.  Co.  v.  Goodman,  78, 
79. 

V.  Kartell,  515,  517,  532. 
Penrose  v.  Curren,  432. 
People  V.  Baker,  228. 

V.  Booth,  30. 

V.  Brooks.  367. 

V.  Byron,  368. 

V.  Calder,  44. 

V.  Chamberlain,  2.50,  252. 

V.  Chapman,  63.  192. 

V.  Conklin,   471. 

V.  Da  well,  29,  227 

V.  Domenico,  436. 

V.  Ewer,  380. 

V.  Finley,  455. 

V.  Poy,  455. 

V.  Garbutt,  461, 

V.  Globe  Mut.  Life  Ins.  Co.,  498. 

V.  Hammill,  462. 

V.  Harty,   250. 

V.  Koerner,  462. 

V.  Laudt,  250. 

V.  Lochner,  479. 

V.  McLeod,   466. 

V.  Mercein,  186,  275. 

V,  Miller,  60. 

V.  Moores,  391,  392,  394. 

V.  Mortimer,  455. 

▼.  Mullln,    391. 


606 


CASES  CITED. 
[The  figures  refer  to  pages.] 


People  V.  Olmstead,  267,  269. 

V.  Overseers  of  Poor  of  Town  of 
Ontario,  242. 

V.  Pierson,  380,  381. 

V.  Pine,   454. 

y.  Porter,  270. 

V.  Randolph,  437. 

V.  Rogers,  461,  463. 

V.  Schuyler,    63. 

V.  Seelye,  373. 

V.  Sinclair,  269,  272. 

V.  Slack,  22,  23. 

V.  Smith,  478. 

V.  Taylor,  454. 

V.  Todd,  437. 

V.  Townsend,  435. 

V.  Ti-ank,  381. 

V.  Walker,  461,  463. 

V.  Wilcox,  267,  321,  324,  327,  329. 

V.  Williams,  479. 

V.  Winters,   57. 

V.  Wright,  60,  62. 
Peoria,  D.  &  E.  R.  Ck).  v.  Rice,  535. 
Pepper   v.    Stone,   338,   368. 
Percy  v.  Cockrill,  152. 
Perine  v.  Grand  Lodge,  349. 
Perkins  v.  Dyer,  360. 

V.  Elliott,  163. 

V.  Finnegan,  370. 

V.  Morgan,  135. 
Perrin  v.  Wilson,  397. 
Perry  v.  Blumenthal,  91,  154. 

V.  Carmichael,  306,  317, 

V.  Michigan  Alkali  Co.,  523. 

V.  Pearson,  443. 

V.  Perry,  40,  42,  43,  57,  58. 

V.  Tozer,  518. 
Perry  Clear  v.  Jacobs,  99. 
Person  v.  Chase,  425. 
Pertrels  v.  Tondear,  41. 
Peschel  v.  Chicago,  M.  &,  St.  P.  Ry. 

Co.,  531. 
Peter  Adams  Paper  Co.  t.  Cassard, 

157. 
Peters  v.  Fleming,  396. 

V.  Peters,  73. 
Peterson  v.  Drew,  501. 


Peterson  v.  Haffner,  430. 

V.  Laik,  415. 

V.  Whitebreast    Coal    &    Mining 
Co.,  532. 
Petit  V.  Petit,  49. 
Petrie  v.  Williams,  420,  421. 
Pettee  v.  Pettee,  215. 
Pettit  V.  Pettit,  30,  186. 
Pettus  V.  Dawson,  248. 

V.  Sutton,  350. 
Petty  V.  Anderson,  121. 

V.  Roberts,  403,  414. 
Peugnet  v.  Phelps,  42. 
Pfannebecker   v.    Pfannebecker,    201. 
Phelin  v.   Kenderline,  301 
Phelps  V.  Phelps,  97.  220. 

V.  Worcester,  398. 
Philadelphia,  W.  &  B.  R.  Co.  v.  Lar- 

kin,  544. 
Philips  V.  Green,  416. 

V.  Hatch,  469. 
Phillips  V.  Allen,  238. 

V.  Barnet,  73,  74,   178. 

V.  Chicago,  M.  &  St.  P.  Ry.  Co., 
524. 

V.  Davis,  329,  335. 

V.  Graves,  163,  164. 

V.  Green,  413. 

V.  Hoskins,  415. 

V.  Lloyd,  398. 

V.  Meyers,  54. 

V.  Phillips,  215,  217,  310. 

V.  Richardson,  65,  67. 

V.  Spalding's  Guardian,  358. 
PhUp  V.  Squire,  81. 
Phinney  v.  Illinois  Cent.  R.  Co.,  524. 
Pickens'  Estate,  In  re,  238. 
Pickering  v.  Gunning,  395. 
Pidge  V.  Pidge,  202. 
Pidgin   V.    Cram,   253,   254. 
Pierce,  In  re,  180. 

V.  Chace,   111,  115,  116. 

V.  Pierce,  173.  214. 

V.  Prescott,  346,  347,  348,  373. 

V.  Vansell,  168,   174. 
Pierce's  Adm'r  v.  Trigg's  Heirs,  356. 
Pierpont  v.  Wilson,  131,  135. 


CASES  CITED. 
[The  figures  refer  to  pages.] 


607 


Piers  T.  Piers,  36. 
Pierson  v.  Heisey,  307. 
Pigeon  V.  Lane,  525. 
Pike  V.  Brittan,  54L 

V.  Pike,  37. 
Pile  V.  Pile,  204,  210. 
Pillar  V.  Pillar,  195. 
Pinckney  v.  Talmage,  489. 
Ping  Min.  &  Mill.  Co.  v.  Grant,  279, 

390. 
Pinkard  v.  Pinkard,  204. 
Pinnell  v.  Hinkle,  331. 
Pioneer,  The,  483. 
Pior  V.  Giddens,  113. 
Pirtle  V.  State,  403. 
Pitcairn  v,  Pitcairn,  43. 
Pitclier  V.  Laycock,  415. 
Pittam  V.  Foster,  115. 
Pitts  V,   Pitts,  219. 
Pittsburgh,    C.    &    St.    L.    R.    Co.    v. 

Adams,  517,  523. 
Place  V.  Grand  Trunk  R.  Co.,  522. 
Plahn  V.  Dribred,  270,  276. 
Planche  v.  Colburn,  491. 
Plant  V.  Taylor,  28. 
Plaster  v.  Plaster,  254. 
Platner  v.  Patchin,  139,  140. 
Piatt  V.  Southern  Photo  Material  Co., 

518. 
Plattner  v,  Plattner,  36. 
Plowes  V.  Bossey,  238,  241. 
Plummer  v.  Jarman,  93. 

V.  Webb,  276,   297,  304,  537. 
I'ochelu's  Emancipation,  In  re,  426. 
Poe  V.   Schley,  373. 
Poindexter  v.  Blackburn,  96. 
Pokanoket,  The,  488,  489. 
Pollock  V.  Pollock,  54,  200. 
Poison  V.  Poison,  220. 
Pomeroy  v.  Manhattan  Life  Ins.  Co., 
.     155. 
Pond  V.  Carpenter,  116,  143,  157,  163. 

V.  Curtiss,  349. 
Ponder  v.  D.  W.  Morris  &  Bro.,  129. 

V.  Graham,  28. 
Pool  V.  Pratt,  20. 
Poor  V.  Poor,  57,  199. 


Popkin  V.  Popkin,  219. 
Popp  V.  Connery,  160. 
Porch  V.  Fries,  106,  36a 
Porritt  V.  Porritt,  206,  209. 
Port  V.  Port,  31,  33,  34,  35,  37. 
Porter,  In  re,  383. 

V.  Bank  of  Rutland,  142. 
V.  Briggs,  136. 
V.  Day,    550. 
V.  Powell,  254. 
Porterfield  v,  Butler,  116. 
Portland  Iron  Works  v.  Willett,  506. 
Portsmouth  v.  Portsmouth,  17. 
Post  V.  Post,  189,  190. 
Potinger  v.  Wightman,  312.  336. 
Potter  V.  Carpenter,  480. 
V.  Clapp,  44. 
Faulkner,  526. 
Hiscox,  340,  347. 
New  York,  etc.,  R.  Co.,  535 
Potter,   44. 
Potts  V.  Terry,  320. 
Poussard  v.  Spiers,  493. 
Powell  V.  Benthall,  82,  83. 
V.  Evans,  351. 
Manson,   168. 

Powell,  26,  38,  42,  59,  365. 
Sherwood,  536. 
State,  380. 

Virginia  Const.  Co.,  547. 
Powelson  v.  Powelson,  198. 
Powers  V,  Harlow,  428. 
V.  Powers,  87,  307. 
Prall  V.  Smith,  151. 
Prat  V.  Taylor,  90. 
Prather  v.  Prather,  203. 
Pratt  V.  Nitz,  247. 
Pratt's  Adm'r  v.  Baker,  334. 
Pray  v.  Gorham,  277. 

V.  Standard  Electric  Co.,  486. 
V.  Stebbins,  112. 
Preble  v.  Longfellow,  330,  333. 
Prendergast  v.  Prendergast,  191- 
Prentice  v.  Decker,  30G. 
Prentiss  v.  Kent  Furniture  Mfg.  Co. 
521,  523. 
V.  Ledyard,  489,  497. 


608 


CASES  CITED. 

[The  figures  refer  to  pages.] 


Prentiss  r.  Paisley,  16a 
Prescott  V.  Brown,  90,  95. 

V.  Norris,   433. 

V.  White,   507. 
President,   etc.,   of  Merchants'   Bank 
V.  New  Yorli  &  N.  H.  R.   Co.,  540. 
Prettyman  v.  Williamson,  86. 
Pretzinger  v.  Pretzinger,  254,  256. 
Prevost  V.  Gratz,  341. 
Prewit  V.  Wilson,  171. 
Price  V.   Furman,  404,  418,  419,  420, 
424. 

V.  Hewett,  434. 

V.  Jennings,  398,  435. 

V.  Price,  58,  85. 

V.  Sanders,  394,  395,  899. 
Pride  v.  Earls  of  Bath,  28. 
Prince  v.  Hine,  336. 
Prindle  v.  Holcomb,  361. 
Prine  v.  Prine,  18,  19. 
Probate  Court  v.  Niles,  97. 
Probate  Judge  v.  Stevenson,  367. 
Proctor  V.  Bigelow,  36. 

V.  Proctor,  223. 

V.  Sears,  409. 
Proudley  v.  Fielder,  102. 
Prout  V.  Wiley,  406. 
Prouty  V.  Edgar,  392. 
Purinton  v.  Jamrock,  247. 
Purple  V.  Railroad  Co.,  76. 
Pursley  v.  Hays,  412. 
Putnam  v.  Bicknell,  179,  180. 

V.  Tennyson,  116. 
Pyatt  V.  Pyatt,  258,  334,  364. 
Pyle  V.  Cravens,  38& 
Pyne  v.  Wood,  397,  415w 
Pyott  V.  Pyott,  17. 


Quadring  v.  Downs,  317. 
Quarles  v.  Quarles,  219. 
Quarman  v.  Bm-nett,  546 
Queen  v.  Smith,  274. 
Quick  V.  Miller,  70 
Qnigley  v.  Graham,  151. 
Quilty  V.  Battie,  72. 
Quincy  v.  Qulncy,  217,  219,  220. 


Quincy  Min.  Co.  v.  Kitts,  530. 
Quinlan    v.    Lackawanna    Steel    Co., 

528. 
Quinn  v.  Ladd,  468. 
V.  Power,  542. 


Rabe  v.  Hanna,  82. 
Rader  v.  Adamson,  386. 

V.  Rader,  193,  194. 
Radford  v.  Carwile,  143,  144,  147. 
Rafferty  v.  People,  461. 
Ragland  v.  Justices  of  Inferior  Court, 

374. 
Ragon  V.  Toledo,  A.  A.  &  N.  M.  Ry. 

Co.,  521. 
Railsback  v.  Railsback,  83,  85. 
Railway  Co.  v.  Whitton's  Adm'r,  79. 
Rains  v.  Wheeler,  186. 
Rajnowski  v.  Detroit,  B.  O.  &  A.  B. 

Co.,  298. 
Ralston,  Ex  parte,  32a 

V.  Lahoe,  385. 

V.  Ralston,  212. 
Ramsay  v.  Ramsay,  324,  329. 

V.  Thompson,  320. 
Randall   v.  Morgan,  176. 

V.  Randall,    186,    187. 

v.  Rotch,  477. 

V.  Sweet,  393,  399. 
Randlett  v.  Rice,  37. 
Rankin  v.  Miller,  '658. 
Rannells  v.  Gemer,  44a 
Ransom  v,  Nichols,  102,  lia 

V.  Ransom,  190,  22a 
Rapho  V.  Moore,  512. 
Rapid,  The,  469. 
Rapid  Transit  Land  Co.  t.   Sanford, 

410. 
Rapp  V.  Rapp,  20a 
Rath  V.  Rankins,  1.53. 
RatliCf  V.   Baltzer's   Adm'r,  443,  445, 

446. 
Ratte  V.  Dawson,  428. 
Rawdon  v.  Rawdon,  19,  38,  41,  42. 
Rawlyns  v.  Vandyke,  255. 


CASES  CITED. 
[The  figures  refer  to  pages.] 


609 


Rawson  y.  Corbett,  334,  350. 

V.  Rawson,  30. 
Ray  V.  Haiues,  403,  424. 

V.  Tubbs,  393,  432. 
Raymond  v.  Loyl,  253, 
Raynes  v.  Bennett,  131,  135. 
Raysor   v.    Berkeley   Ry.    &   Lumber 

Co.,  481. 
Rea  V.  Durkee,  130,  131,  132. 

V.  Englesing,  382. 

V.  Tucker,  86,  87. 
Reab  v.  Moore,  509. 
Read  v.  Legard,  445. 

V.  Morse,  518. 
Reade   v.   Livingston,    174,    175,    176, 

182. 
Reading  v.  Wilson,  330,  332. 
Reading  Fire  Ins.  &  Trust  CJo.,  Appeal 

of,  37. 
Ream  v.  Watkins,  283. 
Keams  v.  Taylor,  451. 
Reando  v.  Misplay,  445,  446. 

V.  Misply,  446. 
Reaves  v.  Reaves,  8. 
Rector  v.  Bryant  Lumber  &  Shingle 
Mill  Co.,  521. 

V.  Rector,  382. 
Redden  v.  Baker,  440. 
Redgrave  v.  Redgrave,  36. 
Redington  v.   Redington,  223. 
Reed  v.  Boshears,  414. 

v.  Harper,  461. 

V.  Lane,  388,  389. 

v.  Reed,  82,  83,  85,  199,  204. 

V.  Ryburn,  362. 

V.  Swift.  482. 
Reedie  v.  Railway  Co.,  548. 
Reese  v.  Chilton,  133. 

V.  Starner,  249. 
Reeves  v.  McNeill,  153. 

V.  Reeves,  28,  29,  41,  195. 
Reg.  V.  Avery,  63. 

V.  Barnardo,  247. 

V.  Chadwick,   24,   29. 

V.  Cruse,  62. 

V.  Davis,  462. 

V.  Doody,  462. 

TIFF.P.&  D.Rel.(2d  Ed.)— 39 


Reg.  V.  Dykes,  60. 

v.  Featherstone,  63. 

V.  Griffin,  2U4. 

V.  Gyngall,  268. 

V.  Hill,  386. 

V.  Inhabitants  of  Brighton,  24. 

V.  Jackson,  56,  57,  64. 

r.  Kenny,   62. 

V.  Millis,  15,  31,  34,  35,  37. 

V.  Morby,  253. 

V.  Murrey,  240. 

V.  Nash,  247. 

V.  Nicholas,  386. 

V.  Orgill,  13. 

V.  Philips,  437. 

V.  Stokes,   455. 

V.  Thompson,  63. 

V.  Tollett,  62,  63. 

V.  Torpey,   62. 
Rehart  v.  Rehart,  193. 
Reid  V.  Reid,  201,  223. 
Reiersen  v.  Reiersen,  215. 
Reinders  v.  Koppelmann,  246. 
Reinhart  v.  Bills,  80. 
Reinskopf  v.   Rogge,  460. 
Reis,  In  re,  107. 
Reithmaier  v.  Beckwith,  54. 
Remmington  v.  Lewis,  249. 
Renfrow  v.  Renfrow,  32. 
Reniger  v.  Fogossa,  462. 
Rennington  v.  Cole,  40. 
Respublica   v.   De   Longchamps,   466. 
Renter  v.  Lawe,  374. 
Revett  V.  Harvey,  322,  364. 
Rex  V.  Clark.  63. 

V.  De  Manneville,  267. 

V.  Greenhill,  267. 

v.  Inhabitants     of     Birmingham 
33. 

V.  Inhabitants  of  Burton,  15. 

V.  Inhabitants       of       Rotberfleld 
Greys,  391. 

V.  Inhabitants    of    Twyning,    45. 

V.  Inhabitants    of    Welford,    494. 

V.  James,  63. 

V.  Lister,  56. 

V.  Luffe,  234,  239,  241,  242. 


610 


Rex  V.  March,  63. 

V.  Morris,  61. 

V.  Murnleu,  311. 

V.  New,  247. 

V.  Oakley,  355. 

V.  Owen,  436. 

V.  Price,  60. 

V.  Rook,  242. 

V.  Tollree,  63. 

V.  Wakelield,  12,  13. 

V.  Williams,  386. 
Reynolds,  In  re,  368. 

V.  Ferree,   260. 

V.  Hart,  497. 

V.  Hitchcock,    249. 

V.  Lansford,  183. 

V.  McCurry,  420. 

V.  Reynolds,  10,  11. 

V.  Robinson,  90. 

V.  Sweetser,  132,  254. 

V.  U.   S.,  192. 
Reynolds'  Adm'r  v.  Reynolds,  310. 
Rhame  v.  Rhame,  194. 
Rhea  v.  Rhenner,  28,  117. 
Rhoades  v.  McNulty,  306. 

V.  Rhoades,  55. 
Rhodes  V.  Des  Moines,  524. 

V.  State,  380. 
Rhyne  v.  Hoffman,  238. 
Ribet  V.  Ribet,  223. 
Ricci  V.  Mueller,  71. 
Rice  V.  Boyer,  403,  404,  423,  434. 

V.  Mexican  Nat.  R.  Co.,  76. 

V.  Peet,  443. 

V.  Shipley,  153. 
Rice's  Case,  327,  360,  361. 
Rich  V.  Cockell,  143. 
Richard  v.  Brehm,  36. 
Richards  v.  Collins,  272,  273,  275. 

V.  Richards,  56,  57,  96,  102,  195, 
199,  208. 
Richardson  v.  Boynton,  373. 
V.  Cooper,  511,  512,  517. 
V.  Day,  343. 

y.  Eagle  Mach.  Works,  503. 
V.  Linney,  365. 
V.  Pate,  406. 


CASES  CITED. 
[The  figures  refer  to  pages.] 

Richardson  v.  Richardson,  222,  355. 

V.  Smallwood,  183. 

V.  Stodder,  150. 

V.  Strong,  445. 

V.  Stuesser,  58,  442. 
Richlands  Iron  Co.  v.  Elklns,  522. 
Richmond  v.  Tibbies,  158. 
Rickards  v.  Attorney  General,  171, 
Riddell  v.  Vizard,  360. 
Riddle  v.  Riddle,  4. 
Riddle's  Estate,  In  re,  310. 
Riddlesden  v.  Wogan,  28. 
Ridgway  v.   Hungerford  Market  Co., 

497,  508. 
Rie  V.  Rie,  203. 
Rieger  v.  Schaible,  166. 
Rietman  v.  Stolte,  521. 
Riggan  v.  Green,  447. 
Riggs   V.   American   Tract   Soc,   444. 

V.  Zaleski,  349. 
Rigley  v.  Lee,  68. 
Rigsby  V.  Oil  Well  Supply  Co.,  513, 

520,  521,  528. 
Riley  v.  Carter,  445. 

V.  Dillon  &  Pennell,  406,  407. 

V.  Mallory,  404. 
Rima  v.  Rossie  Iron  Works,  384. 
Rinehart  v.  Bills,  SO. 
Ring  V.  Jamison,  414. 
Rinker  v.  Streit,  335. 
Ripple  V.  Kuehne,  308. 
Rist  V.  Hartner,  365. 
Ristine  v.  Ristine,  224. 
Ritch  V.  Hyatt,  157. 
Ritter  v.  Ritter,  12. 
Rivers  v.  Dm-r,  385. 

V.  Gregg,  395,  397. 
Rives  V.  Sneed,  244. 
Rix  V.  Rix,  214,  215. 
Rixey's  Adm'r  v.  Deitrlck,  93,  142. 
Roach  v.  Gai-van,  48,  257,  329. 

v.  Quick,  139,  391. 
Roadcap  v.  Sipe,  66.  67. 
Robalina  v.  Armstrong,  247.' 
Robbins  v.  Eaton,  411,  412,  413. 

V.  Robbins,    173v    215,    218;    219, 
222. 


CASES  CITED. 
[Tbe  figures  refer  to  pages.] 


611 


Roberts,  In  re,  3G3. 

V.  Coleman,  310. 

V.  Frisby,  54. 

V.  Haines,  154. 

V.  Knights,  467. 

V.  People,  60. 

V.  Rockbottom  Co.,  4S4. 
Robertson  v.  Cole,  12. 

V.  Robertson,  1S6. 

V.  State,  35,  37. 

V.  Terre  Haute  &  I.  R.  Co.,  531 
Roberts'  Widow  v.   Stanton,  385. 
Robinson  v.  Allison,  380,  405. 

V.  Cone,  429. 

V.  Davison,  499,  508. 

V.  Hattiaway,  425. 

V.  Hindman,  494. 

V.  Hoskins,  411. 

V.  Reynolds,  117. 

V.  Robinson,  193,  343. 

V.  Ruprecht,  235. 

V.  Weeks,  387,  419. 

V.  Zollinger,  319,  371. 

V.  Gosnold,  133. 
Roche  V.  Chaplin,  332. 

V.  Washington,  48,  49,  52. 

V.  Waters,   356. 
Rockford,  R.  I.  &  St.  L.  R.  Co.  v.  De- 

laney,  298. 
Rodemeyer  v.  Rodman,  116. 
Rodgers  v.  Bank  of  Pike  County,  97. 

V.  Rodgers,  228. 
Roebling  Const.  Co.  v.  Thompson,  525. 
Roff  V.  Summit  Lumber  Co..  514. 
Rogers  v.  Blackwell,  444,  450. 

V.  Brooks,  104. 

V.  Clifton.  506. 

V.  Dill,  356. 

V.  Ludlow  Mfg.  Co.,  529. 

V.  McLean,  360. 

V.  Parham,  502. 

V.  Rogers,  187,  213,  214,  215,  219, 
220. 

V.  Smith,  75,  77,  78,  287,  288,  289. 
Rolling  Mill  Co.  v.  Corrigan,  516. 
Rollins  V.   Chalmers,  301. 

V.  Marsh,  332. 


Rood  V.  Wright,  158,  162. 

Roos  V.  Basham,  114. 

Root  V.  Kansas  City  Southern  R.  Co., 

525. 
Roscoe  V.  McDonald,  330. 
Rose  V.  Bates,  117. 

V,  Boston  &  A.  R.  Co.,  534. 

V.  Rose,  200,  205. 

V.  Sanderson,  151. 
Roseborough  v.  Roseborough,  335,  336. 
Rosenfeld  v.  Rosenfeld,  19&, 
Rosenthal  v.  Mayhugh,  117. 
Ross  V.  Howard,  114. 

V.  Johnson,  135. 

V.  Ross,  133,  237,  243,  244. 

V.  Singleton,  115,  116. 

V    Southwestern  R.  Co.,  327. 
Roszel  V.  Roszel,  8. 
Roth's  Estate,  In  re,  365. 
Rounds  V   Delaware,  L.  &  W.  R.  Co., 

544. 
Roux   V.    Blodgett   &   Davis   Lumber 

Co.,  529. 
Rowe  V   Rowe,  268. 

V.  Smith,   72. 
Rowley  v.  Towsley,  344. 
Rowney's  Case,  104. 
Royer's  Appeal,  340,  353. 
Roys  V.  Johnson,  483. 
Royston  v.  Royston,  355. 
Rudd  V.  Rounds,  80. 
Ruddock  V.  Marsh,  126,  129. 
Rue  V.  Meirs,  3S4. 
Ruhl  V.  Heintze,  129,  159. 
Rule  V.  Broach,  358. 
Rumney  v.  Keyes,  133. 
Rumping  v.  Rumping,  188. 
Rundle  v.  Pegram,  8. 
Rundschuh  v.  Mayer,  72. 
Runkle  V.  Runkle,  211. 
Ruohs  V.  Backer,  370. 
Rush  V.  Wick,  390. 
Russel    V.   People's    Sav.    Bank,    157, 
158.  159. 

V.  Hammond,  182. 
Russell  V.  Brooks,  89,  90,  95. 

V.  Chambers,  301. 


612 


CASES  CITED. 
[The  figures  refer  to  pages.] 


Russell  V.  Come,  288,  289. 

V.  Graumann,  159. 

V.  Hudson  River  R.  Co.,  531,  534. 

V.  Slade,  484. 

V.  Tillotson.  523. 
Russner  v.  McMillan,  324. 
Rust  V.  Goff,  125. 

V.  Vanvacter,  269. 
Ryall  V.  Kennedy,  312. 
Ryan  v.  Dayton,  490,  502,  509. 

V.  Delaware  &  Hudson  Co.,  516, 
525. 

V.  Fralick,  296. 

V.  Ryan,  223. 

V.  U.  S.,  461. 
Ryder,  Ex  parte,  394. 

In  re,  254. 

V.  Bickerton,  351. 

V.  Hulse,  152. 

V.  Ryder,  212. 

V.  Wombwell,  396,  397. 
Rye  V.  Stubbs,  502. 
Ryerson  v.  Ryerson,  74. 


S.  V.  S.,  212. 

Saffer  v.  Mast,  443. 

Sage  V.  Baltimore  &  O.  R.  Co.,  534. 

Sainsevain  v.  Luce,  349. 

St  John  V.  St.  John,  186. 

St.  Johnsbury  &  L.  C  R.  Co.  v.  Hunt, 

537. 
St  John's  Parish  v.  Bronson,  396. 
St  Louis,   I.   M.  &   S.  R.  Co,  v.  An- 
drews, 513. 

V.  Dupree,  535. 

V.  Yonley,  548. 
St  Louis,  K.  C.  &  C.  R,  Co.  v.  Con- 
way, 516. 
St    I>ouis    Southwestern    R.    Co.    v. 
Harvey.  543. 

V.  Purcell,   77. 
St.  Louis  &  S.  F.  R.  Co.  v.  Ames,  516. 

V.  Weaver,  535. 

V.  Wyatt,  545. 
Sale  V.  Saunders,  97,  105. 
Salinas  v.  Bennett,  413. 
Salisbury,  In  re,  356. 


Sallee  v.  Arnold,  Mr. 
Sallier,  Succession  of,  421. 
Salorgue  v.  Salorgne,  208. 
Salter  v.  Howard,  537,  538. 

V.  Salter,  lOO. 
Saltmarsh  v.  Candia,  75. 
Sammon  v.  Wood,  281. 
Sample  v.  Guyer,  159,  162. 
Sampson  v.  Holbrook,  527. 

V.  Sampson,  310. 
Sams  V,  Sams'  Adm'r,  235. 
Samuel  v.  Marshall,  444. 
San  Antonio  Light  Pub.  Co.  v.  Moore, 

502. 
Sanborn  v.  Goodhue,  307. 

V.  Neilson,  87. 
Sanders  v.  Forgasson,  362. 
Sandusky    Portland    Cement    Co.    T. 

Rice,  527. 
Sanford  v.  Sanford,  310. 

Sargent  v.  ,  296,  299. 

V.  Mathewson,  304,  305. 
Saul  V.   His  Creditors,  49. 
Saunderson  v.  Marr,  388. 
Sausey  v.  Gardner,  94. 
Savage   v.   Foster,   434. 
Savannah,  F.  &  W.  R.  Co.  v.  Smith, 

278,  297. 
Savery  v.  King,  308. 
Savini  v.  Lousada,  360. 
Sawyer  v.  Churchill,  174. 
V.  Cutting,   392. 
V.  Lufkin,  445,  446. 
V.  Martins,  545. 
Sax  v.  Detroit   G.   H.  &  M.   R.  Co., 

479. 
Saxe  V.   Shubert  Theatrical  Co.,  487. 
Saxon  v.  Saxon,  110. 
Sayles  v.  Sayles,  186. 
Say's  Ex'rs  v.  Barnes, 
Scamell    v.    St.    Louis    Transit    Co., 

278. 
Scammon  v.  City  of  Chicago,  541,  547. 
Scanlan  v.  Cobb,  447. 
Scanlon  v.  Walshe,  238. 
Scantland  v.  Com.,  250. 
Scarborough  v.  Watkins,  178,  179. 
Scarlett  v.  Norwood,  299. 


CASES   CITED. 
[The  figures  refer  to  pages.] 


613 


Scawen  v.  Blunt,  96. 

Sceva  V.  True,  445,  446. 

Schaadt  v.  Mutual  Life  Ins.  Co.,  114. 

Schafer  v.  Eneu,  244. 

Schalble  v.   Lake   Shore   &  M.   S.   R. 

Co.,  534. 
Scbammel   v.   Schammel,   274. 
Schaps  V.   Lehuer,  447. 
Schaub  V.  Schaub,  208. 
Scheller  v.   Silbermiiitz,   551. 
Schenk  v.  Strong,  433. 
Scheuer  v.  Monash,  492. 
Schichtl  V.  Schichtl,  274. 
Schillinger   Bros.    Co.   v.   Smith,   521. 
Scblereth   v.   Missouri   Pac.    Ry.   Co., 

535. 
Schlossberg  v.  Lahr,  261. 
Scbmelzer  v.  Chester  Traction  Co.,  77. 
Schmidt  v.   Keehn,   69. 

V.  Milwaukee   &   St.    P.    Ry.   Co., 
427,  429. 
Schminkey  v.   T.   M.   Sinclair  &  Co., 

519,  522,  527. 
Schmisseur  v.  Beatrie,  45. 
Schmitheimer  v.  Eiseman,  434. 
Schmit  V.  Mitchell,  303. 
Sctmeider  v.  Breier,  138. 
V.  Garland,  158. 
V.  Rosenbaum,   135. 
Schockley  v.  Shepherd,  261. 
Schoen  v.   Schoen,  205. 
Schoenberg  v.  Voigt,  282. 
Scholefield  v.  Eichelberger,  469. 
School  Directors  v.  James,  337. 
School  Dist.   No.  1  v.  Bragdon,  430. 
Schoonover  v.  Sparrow,  2&4. 
Schom  V.  Berry,  87. 
Schradin  v.  New  York  Cent.  &  H.  R. 

R.   Co.,  536. 
Schroeder  v.  State,  268,  270. 
Schroter  v.  Schroter,  10,  26. 
Schuff  V.   Ransom,  449. 
Schuler  v.  Henry,  70. 
Schultz   V.   Schultz,   73. 
Schumpert,  Ex  parte,  270,  271. 
Schurr  v.  Savigny,  510. 
Schuster  v.  Bauman  .Jewelry  Co.,  279. 
Schu^-ler  v.  Broughton,  114. 


Schuyler  v.  Hoyle,  97,  98,  103. 
Schwartz  v.  Gilmore,  547. 

V.  Saunders,  89. 

V.  Schwartz,  16. 
Scidmore  v.  Smith,  537. 
Scoggins  V.    Scoggins,   272. 
Scott  V.  Buchanan,  405,  416. 

V.  Collier,  158. 

V.  Com.,  455. 

V.  Cotten,  121. 

V.  Freeland,   340,  341,  342. 

V.  Key,  237. 

V.  Paquet,  19. 

V.  Sandford,  470. 

V.  Scott,  156,  160. 

V.  Sebright,  13. 

V.  Shufeldt,  11,  16,  43. 

V.  Watson,  261,  431. 

V.  White,  284. 
Scott's  Account,  In  re,  362. 
Scoville  V.  Brock,  345. 
Scranton  v.  Stewart,  401,  415. 
Scripps  V.  Reilly,  85. 
Scroggins  v.  Scroggins,  10. 
Seaburn  v.  Zachmann,  506. 
Seaman  v.  Duryea,  372. 
Searcy  v.  Hunter,  401,  423. 
Searing  v.   Searing,  99. 
Searle  v.  Galbraith,  444. 

V,  Ridley,  493. 
Sears  v.   Giddey,  137,  138. 

V.  Terry,    326,   327. 
Seaton  v.  Benedict,  128. 
Seaver  v.  Adams,  84,  85,  87. 

V.  Boston  «&  M.   R.   Co.,  534. 

V.  Phelps,    447. 
Seaverns  v.  Gerke,  327. 
Seavey  v.   Shurick,  488. 
Sebastian  v.  Bryan,  374. 
Secor  V.   Secor,  205. 
Seed  V.  Jennings,  424. 
Seeley    v.    Seeley-Howe-Le    Van    Co., 

402,  424. 
Segelbaum  v.  Segelbaum,  199,  201. 
Seguin's  Appeal,  338. 
Seigmund  v.  Seigmund,  211. 
Seller  v.  People,  61,  67. 
Seilheimer  v.  Seilheimer,  12. 


6U 


CASES  CITED. 
[The  figures  refer  to  pages.] 


Seipel    V.    International    Life   Ins.   & 

Trust  Co.,  491. 
Seiter  v.  Straub,  337. 
Seltz  V.  Mitchell,  90. 
Selah  V.  Selah,  43. 
Selby  V.  Selby,  367. 
Sellars  v.  Davis,  40. 
Selleck  v.   Sellecli,   167. 
Seller  v.   Seller,  225. 
Semet-Solway  Co.  v.  Wilcox,  501. 
Semmes   v.    City   Fire   Ins.    Co.,  469, 

470. 
Sencerbox    v.    First    Nat    Bank    of 

Omaha,  155. 
Senge  v.  Senge,  44. 
Senser  v.  Bower,  45. 
Sergeant   v.    Steinberger,   111. 
Sergent  v.  Sergent,  200. 
Sergison,  Ex  parte,  382. 
Sessions  v.  Kell,  325. 
Sewall  V.  Roberts,  244. 

V.  Sewall,  217,  434. 
Sexton  V.   New   York  Cent.   &  H.   R. 

R.  Co.,  545. 
Seybold  v.   Morgan,   131,   138. 
Shackelton  v.  Sebree,  459. 
Shackett  v.  Shackett,  223. 
Shackleton    v.    Shackleton,    218*    219, 

220. 
Shaeffer  v.  Sheppard,  90. 
Shaffer  v.  Detie,  389. 
Shafher  v.  State,  21,  22. 
Shamleffer  v.  Council  Grove  Peerless 

Mill  Co.,  357. 
Shanks  v.  Seamonds,  357. 
Shauny  v.   Androscoggin   MlUs,   529. 
Sharon  v.  Sharon,  37. 
Sharp  V.  Erie  R.  Co.,  543. 

V.  McBride,  497,  503. 

V.  Rhiel,  4S4. 
Sharpe  v.  Crispin,  312. 
Sharpless'  Appeal,  117. 
Shattock  V.  Shattock,  147. 
Shattuck  V.  Hammond,  86. 
Shaver  v.  Ingham,  495,  496,  497. 

V.  McCarthy,  457. 
Shaw  V.  Boyd,  419. 

V.  Coffin,  435. 


Shaw  v.  Gould,  217. 

V.  Natchwey,  273. 

V.  Russ,   123. 

v.  Shaw,  189,  193,  196. 

V.  Sheldon,  521. 

V.  Thompson,  445. 
Shea  V.   Sixth  Ave.   R.  Co.,  544,  545. 
Shedden  v.  Patrick,  237. 
Sheehan  v.  New  York  Cent.  &  H.  B. 

R.  Co.,  532. 
Sheers  v.  Stein,  2T2,  275. 
Sheetz's  Estate,  In  re,  319. 
Sheilds   v.    Yonge,   293. 
Sheldon's  Lessee  v.  Newton,  392. 
Shell  V.  Shell,  194. 
Sbelmerdine,  In  re,  383. 
Shelton  v.   Pendleton,  136. 

V.  Springett,   253,  395. 
Shepard  v.  Shepard,  179,  180. 
Shepherd  v.  EVans,  347. 
Shepperson  v.  Shepperson,  179. 
Sheridan  v.   Charlick,  542. 
Sheriff  of  Fayette  v.  Buckner,  93. 
Sherley  v.  Billings,  544. 
Sherlock  v.   Kimmell,  279. 
Sherman  v.  Ballou,  322. 

V.  Champlain    Transp.    Co.,    501, 
502. 

V.  Johnson,  298. 

V.  Sherman,  13. 
Sherry   v.   Sans  berry,   342. 
Sherwood  v.  Hall,  537. 

V.   Warner,  541. 
Shields  v.  Yonge,  288,  289,  293,  294, 

297. 
Shipley  v.  Smith,  404,  418,  425. 
Shirk  V.  Shultz,  390,  404,  405,  420. 
Shirley  v.  Shirley,  93. 

V.  Taylor's  Heirs,  440. 
Shiver  v.  Brock,  310. 
Shockley  v.  Shepherd,  201. 
Shoro  v.  Shoro,  13. 
Shors  V.  Shors,  55. 
Short  v.  Battle,  150. 
Shoulters  v.  Allen,  447. 
Shrady  v.  Logan,  11. 
Shreeves  v.  Caldwell,  403,  415. 
Shuey  v.  Adair,  114. 


CASES  CITED. 
[The  figures  refer  to  pages.] 


615 


Shuman  v.  Stelnel,  128,  135. 
Shumway  v.  Cooper,  149. 
Shurtleff  v.  MiUard,  424. 

V.  Rile,  346. 
Shute  V.  Dorr,  277,  278,  280,  281,  284. 
Shutt  V.  Carloss,  3G8. 
Slas    V.    Consolidated    Lighting    Co., 

517. 
Sickles  V.  Carson,  14. 
Sidway  v.  Nichol,  153,  158. 
Sikes  V.  Tippins,  80,  87. 
Sillings  V.  Bumgardner,  349. 
Simmons  v.  Brown,  66,  67. 

V.  Bull,  246,  249. 

V.  McElwain,    179,    180,    18a 

V.  State,  436. 
Simms  v.  Norris,  332. 
Simon  v.  Allen,  502. 

V.  Simon,  193. 

V.  State,  32. 
Simonds  v.  Simonds,  192. 
Simonton  v.  Bacon,  443. 
Simpson  v.  Alexander,  383,  384. 

V.  Belcher,  125. 

V.  Gonzalez,  369,  370. 

V.  Gutteridge,  167. 

V.  Prudential  Ins.  Co.  of  America, 
382,  398. 

V.  Simpson,  55. 
Sims  V.  Everhardt,  382,  406,  434. 

V.  Renwick,  361. 

V.  Rickets,  178-181. 

V.  Sims,  19. 

V.  Sims'  Adm'r,  307. 
Sinclair  v.   Sinclair,   11. 
Sines  v.  Superintendents  of  Poor,  482. 
Singer  v.  McCormick,  494. 
Singer   Mfg.   Co.   v.   Lamb,   407,   415, 

416. 
Singleton  v.  State,  436. 
Sioux  City  &  P.  R.  Co.  v.  Stout,  427, 

428. 
Sir  Ralph  Bovy's  Case,  174. 
Sisemore  v.  Sisemore,  202. 
Siter,  Case  of,  98. 
Skarf  V.  Soulby,  182. 
Skean  v.  Skean,  202. 
Skelton  v.  Ordinary,  353. 


Skldmore  v.  Davles,  370. 

SkiUman   v.   SkUlman,   90. 

Skinner  v.   Housatonic  R.   Corp.  297. 

V.  Maxwell,  390,  417. 

V.  Skinner,  199. 

V.  Tkrell,  131,  135,  136,  137. 
Slanning  v.   Style,   179. 
Slater  v.  Advance  Thresher  Co.,  542, 
543. 

V.  Jewett,  516,  528,  530,  531. 

V.  Nason,  468. 

V.  Rudderforth,  403,  416. 

V.  Slater,  268,  269,  273. 
Slattery  v.  Lawrence  Ice  Co.,  427. 
Slaughter  v.  Nashville,  C.  &  St  L.  R. 

Co.,  287. 
Slaymaker  v.  Bank,  97. 
Slinger's  Will,  In  re,  463. 
Small  V.  Champeny,  440. 
Smalley  v.  Lawrence,  113. 
Smallwood  v.  Smallwood,  195. 
Smart  v.  Whaley,  41. 
Smedley  v.  Smedley,  193. 
Smee  v.  Smee,  458. 
Smillie's  Estate,  In  re,  97. 
Smith,  In  re,  268,  270. 

V.  Allen,    169,    171,   497. 

V.  Atchison,   T.   &    S.    F.    R.    Co., 
430. 

V.  Baker,  494. 

V.  Bean,  347. 

V.  Car  Works,  513,  517. 

V.  Cashie  &  Chowan  R.  &  Lum- 
ber Co.,  501,  502,  503. 

V.  Chicago  Junction  R.   Co.,  512. 

V.  City  of  St.  Joseph,  75,  77,  78. 

V.  Davenport,  261. 

V.  Davis,  365. 

V.  Dayton  Coal  &  Iron  Co.,  519. 

V.  Derr's  Adm'rs,  237. 

V.  Dibrell,  344,  345. 

V.  Foran,  507. 

V.  Puller,  44. 

V.  Geortner,  258. 

V.  Gilbert,  260,  283. 

V.  Gillapp,  84. 

V.  Gummere,  355,  375. 

V.  Hockenberry,  85,  87. 


G16 


CASES   CITED. 
[The  figures  refer  to  pages.] 


Smith  V.  Howe,  159,  160. 

V.  Joshua  lyevines,  The,  510. 

V.  Kaye,  80,  81. 

V.  Kelley,  411. 

V.  Kelly's    Heirs,   237. 

V.  Knowles,  187. 

V.  Knowlton,  280. 

V.  Kron,  431. 

V.  Lyke,   82. 

V.  McDonald,  384. 

V.  Martin,   140. 

V.  Masten,  86. 

V.  Mayo,  409,  414. 

V.  Morehead,  27,  38. 

V.  North  Memphis  Sav.  Bank, 
32,  33. 

V.  Oliphant,  399. 

V.  Potter,  530,  531. 

V.  Robson,  487. 

V.  Rock  Island  A.  &  L,  R.  Co., 
515. 

V.  Sackett,  382. 

V.  St.  Paul  &  D.  R.  Co.,  493,  522. 

V.  Silence,  117. 

V.  Smith,  11,  14,  18,  48,  55,  113, 
189,  196,  223,  229,  284,  352, 
353. 

V.  Smith's  Ex'r,  389. 

V.  Taylor,  65. 

V.  Theobald,  488. 

V.  Thompson,  143. 

V.  Williams,  483. 

V.  Williamson,  460. 
Smith's  Committee  v.  Forsythe,  445, 

446. 
Smith's  Estate,  In  re,  32» 
Smith's  Will,  In  re,  458. 
Smoot  V.  Bell,  361. 
Smyley  v.  Reese,  138. 
Smyth  V.  Burns'  Adm'rs,  352. 

V.  State,  33. 
Snavely  v.  Harkrader,  351,  370. 
Snediker  v.  Everingham,  278,  280,  284. 
Sneed  v.  Ewing,  36. 
Snell  V.   Stone,   127. 
Snelling  v.   Lord  Huntingfield,  484. 
Snider  v.  Newell,  300. 
Snodgrars'  Appeal,  353. 


Snook  V.  Watts,  448. 
Snover  v.  Blair,  132. 
Snow   V.    Sheldon,   121. 

V.  Snow,  219,  220. 
Snuffer  v.  Karr,  51. 
Snyder  v.  Hannibal  &  St  J.  R.  Co., 
542. 
V.  People,  62,  63. 
Society    for   the    Propagation   of   the 

Gospel  V.  Wheeler,  150. 
Sockett  V.  Wray,  115. 
Soldanels   v.    Missouri   Pac.   Ry.   Co., 

285. 
Soley's  Estate,  In  re,  371. 
Soltykoff,   In  re,   400. 
Somers  v.  Pumphrey,  439,  445. 
Somerville  v.   Somerville,  312. 
Soper  V.  Igo,  304. 

V.  Soper,  199. 
Sorensen  v.  Sorensen,  34. 
Sorrels  v.  Matthews,  287,  288. 
Sottomayer  v.  De  Barros,  4. 
Soule  V.  Bonney,  13. 
Soules  V.  Robinson,  440. 
South  V.  Denniston,  297,  303. 
Southard  v.  Plummer,  155. 
South  Bend  Land  Co.  v.  Denio,  347. 
South  Covington  &  C.   St.   R.   Co.   v. 

Cleveland,  542. 
Southern  Cotton  Oil  Co.  v.  Dukes,  392, 
420. 

V.  Gladman,  516. 

V.  Skipper,  516,  520. 
Southern  Indiana  R.  Co.  v.  Baker,  531. 
Southern   Marble  Co.  v.  Stegall,  319. 
Southern  Pac.  Co.  v.  Allen,  521. 
Southern  R.  Co.  v.  Carr,  517. 

V.  Elliott,  534. 

V.  Flemister,  279,  290. 

V.  Power  Fuel  Co.,  545. 

V.  Reynolds,  551. 

V.  Rutledge,  527. 

V.  Smith,  534. 
Southmayd  v.  Watertown  F.  Ins.  Co., 

486. 
Southwick  V.  Southwick,  201. 
Spain  V.  Amott,  494,  495. 
Spalding  y.  Rosa,  499. 


CASES   CITED. 
[The  figures  refer  to  pages.] 


617 


Sparhawk  v.  Allen,  338. 

V.  Sparhawk,  229. 
Sparks  v.   Bodensick,   468. 

V.  River  &  Harbor  Improvement 
Co.,  512. 

V.  Ross,  44. 

V.  Sparks,    219. 
Sparman  v.  Keim,  421. 
Spath's  Estate,  In  re,  363. 
Speck   V.   Phillips,   493. 
Speer  v.  Tinsley,  333. 
Speier  v.  Opfer,  112,  154,  157. 
Speight  V,  Gaunt,  345. 

V.  Knight,  327,  371. 

V.  Oliviera,  292. 
Spencer  v.  Earl  of  Chesterfield,  369. 

V.  Lewis,   104. 

V.  State,   55. 
Sperry  v.  Fanning,  332. 

V.  Haslam,   151. 
Spicer  v.  Holbrook,  449. 
Spitz,  Appeal  of,  119. 
Spoonheim  v.   Spoonheim,  459. 
Spotswood  V.  Barrow,  494,  497. 
Sprague   v.    Tyson,    147. 
Spreckels  v.  Spreckels,  114. 
Spring  V.  Kane,  358. 

V.  Woodworth,  331. 
Spurgeon  v.  McElwain,  483. 
Spurlock  V.  Brown,  173,  174. 
Squib  V.  Wyn,   102. 
Squier  v.   Hydliff,   395. 
Squire  v.  State,  45. 
Stack  V.  Padden,  159. 
Staokhouse  v.  Horton,  458. 
Stafford  v.  Roof,  404,  424. 
Stalcup  V.  Stalcup,  110. 
Stammers  v.  Macomb,  131,  135. 
Standard   Oil  Co.   v.   Gilbert,  482. 

V.  Parkinson,  541,  546. 
Standeford  v.  Devol,  97,  98. 
Standen  v.  Pennsylvania  R.  Co.,  78, 

79,  91. 
Standidge  v.  Lynde,  494. 
Stanley  v.  Bank,  284. 
Stans   V.    Baitey,    37. 
Stansbury  v.  Bertron,  283. 
Stanton  v.  Wetherwax,  457. 


Stanton  v.  Willson,  254. 
Stanwood  v.  Stanwood,  99. 
Staples,  Appeal  of,  138. 

V.  Wellington,    444. 
Stapleton  v.  Langstaff,  356. 
Starbird  v.  Moore,  384. 
Starbuck  v.  Starbuck,  189,  229. 
Stark  V.  Gamble,  351,  362,  365. 

V.  Kirchgraber,  142, 

V.  Parker,  50a 
Starkweather  v.    Emerson   Mfg.    Co. 

487. 
Starr  v.  Pease,  230. 

V.  Watkins,  419. 

V.  Wright,  392. 
Starrett  v.  Douglass,  463. 

V.  Wynn,  117. 
State  V.  Aaron,  436. 

V.  Adams,  436,  462. 

V.  Alexander,  465. 

V.  Alford,   264,  266. 

V.  Armington,    189.   227,   229. 

V.  Baird,  268. 

V.  Baker,   60. 

V.  Baldwin,  274,  275. 

V.  Baltimore  &  O.  R.  Co.,  278. 

V.  Banks,  62,  63. 

V.  Barney,  269. 

V.  Barrett,  276,  278. 

V.  Barton,  436. 

V.  Beers,  252. 

V.  Bell,  60. 

V.  Bitman,  264. 

V.  Blttick,  31. 

V.  Block,  252. 

V.  Bostick,  436. 

V.  Brady,  27. 

V.  Branch,  363. 

V.  Bratton,   273. 

V.  Brown,  373. 

V.  Broyer,  55. 

V.  Bunce,  427. 

V.  Burton,  264. 

V.  Clark,  332.  335,  8B8L 

V.  Clarke,  379. 

V.  Cleaves,  62. 

V.  Cone,  21,  22. 

V.  Cook,  331. 


618 


CASES   CITED. 
[The  figures  refer  to  pages.] 


State  y.  Cox,  375. 

State 

V.  Nichols,  250. 

T.  Davis,  14,  435,  43& 

V. 

Oliver,  64. 

V.  Deck,  380. 

T. 

Paine,  271,  273. 

V.  De  La  Foret,  46S. 

V. 

Parker,  21. 

V.  Dowell,  63. 

V. 

Peabody,  252. 

V.  Duket,  230. 

V. 

Pendergrass,  266. 

V.  Engelke,  371. 

V. 

Potter,  61. 

V.  Evans,  250. 

V. 

Pratt,  208. 

V.  Fenn,  48,  49. 

V. 

Pugh,  436. 

V.  Flnley,  64. 

V. 

Rhodes,  57. 

V.  Fisk,  435,  436. 

V. 

Richardson,  269,  364. 

V.  Flint,  268. 

V. 

Richie,  386. 

V.  Fowler,  436. 

V. 

Robinson,  60,   157,  462. 

T.  Foy,  350,  363. 

V. 

Roswell,  24. 

V.  Fry,   229. 

V. 

Samuel,  32. 

V.  Fuchs,  55. 

V. 

Schweitzer,  55. 

V.  Gilmore,  364. 

V. 

Setzer,  19. 

V.  Goin,   436. 

V. 

Shackleford,  374. 

V.  Gooch,  346,  353. 

V. 

Shattuck,  51. 

T.  Guild,  436. 

V. 

Shee,   61. 

V.  Hansbrough,  34. 

V. 

Shorey,  380. 

V.  Harrison,  455. 

V. 

Slevin,  374. 

V.  Harvey,  60. 

V. 

Smith,  275,  276,  469. 

V.  Herman,  234. 

V. 

Snell,  456. 

V.  Hodgskins,  32. 

V. 

Sparegrove,  252. 

V.  Hooper,  27. 

V. 

Stebbins,  462. 

V.  Houston,  60,  323. 

V. 

Stewart,  361,  362. 

V.  Johnson,   380,  463. 

V. 

Stigall,  270. 

V.  Jones,  264,  266,  362,  374,  437, 

V. 

Ta-cha-na-tah,  52. 

455. 

V. 

Thrailkill,  436. 

V.  Kean,  44. 

V. 

Tice,  436. 

V.  Kelly,  60. 

V. 

Toole,   63. 

V.  Kennedy,  36,  50. 

V. 

Truitt,  462. 

V.  King,  271. 

V. 

Weatherwax,  391. 

V.  Kluseman,  436. 

V. 

Welch,  461. 

V.  Lawrence,  441. 

V. 

Westmoreland,  30. 

V.  Leslie,  362. 

V. 

Wilson,  234. 

V.  Lewis,  454. 

V. 

Witham,  55. 

V.  Libbey,  275. 

V. 

Worthingham,  8,  32,  33,  36. 

V.  Livingston    Concrete    Bldg.    & 

V. 

Yates,  462. 

Mfg.   Co.,  47a 

V. 

Zichfeld,   32,  33. 

V.  McCants,  462. 

state  Bank  v.  McCoy,  460, 

V.  McGilvery,  32. 

State 

Commission   in   Lunacy  v.   El- 

V.  Martin,  330. 

dridge,  445. 

V.  Miller,  362. 

state 

ex  rel.  Aldrach  v.  Morse,   190. 

r.  Morrison,  345. 

state 

ex  rel.  Pinger  v.  Reynolds,  325. 

T,  Mushled,  250. 

State 

Fair  Ass'n  v.  Terry,  36S. 

V.  Neibekier,  406. 

Stauffer  v.   Morgan,  113,  114. 

CASES   CITED. 
[The  figures  refer  to  pages.] 


619 


Stayte  v.  Farquharson,  15. 
Stebblns  v.  Waterhouse,  506,  507. 
Stecher   Cooperage   Works    v.    Stead- 
man,  527. 
Steel  V.  Steel,  281,  308. 
Steele,  In  re,  372. 
V.  Reese,  374. 
V.  Steele,  12,  201. 
Steen   v.   St.   Paul  &  Duluth   R.  Co., 

522. 
Stegall   V.   Stegall,  234. 
Steiler  v.  Hart,  516. 
Steimer  v.  Steimer,  16. 
Stein  V.  Stein,  30. 
Steinfield  v.  Girrard,  128,  132. 
Stein's  Adm'r  v.  Stein,  235. 
Stem's  Appeal,   349. 
Stephens  v.  James,  327. 

V.  Trueman,  170. 
Stephenson  v.  Duncan,  511. 
Sterling  v.  Arnold,  343. 
Sterling  Emery  Wheel  Co.  v.  Magee 

497. 
Stems  V.  Weathers,  152. 
Sterry  v.  Arden,   169,  171, 
Stevens  v.  Armstrong,  548. 
V.  Crane,  501. 
V.  Cunningham,  91. 
V.  Meserve,  352,  354. 
V.  Story,  131. 
Stevenson  v.  Gray,  33,  48,  49. 
V.  Morris,  76. 
V.  Stevenson,  13. 
Stevenson's  Heirs  v.  McReary,  36. 
Steves  V.  Smith,  32. 
Stevpart  v.  Bailey,  358. 
V.  Howe,  427. 
v.  Lewis,  258. 
V.  Stewart,  191,  201. 
Sticken  v.   Schmidt,  162. 
Stiles  V.   Stiles,  202. 
Stilley  V.  Folger,  167. 
Stilphen  v.  Stilphen,  152. 
StUwell  V.  Mills,  374. 
Stinson  v.  Leary,  367. 
V.  Pickering,  385. 
Stittgen,  In  re,  380. 
Stocket  V.  Holliday,  179. 


Stoffer  V.  StoCfer,  201. 
Stoikstill  V.  Bart,  113. 
Stokes  V.  Anderson,  186,  216. 

V.  Brown,  409, 

V.  Payne,  356. 

V.  Stokes,  205, 
Stoltz  V.  Doering,  34,  37. 
Stone  V.  Bancroft,  506. 

V.  Carr,   255. 

V.  Damon,  458. 

V,  Dennison,  400. 

V.  Hills,  542. 

V.  Stone,   311. 

V,  Wilbern,  443. 
Stoneburner  v.  Stonebumer,  221,  223. 
Stork   V.    Charles    Stolper   Cooperage 

Co.,  513. 
Storrs  V.  City  of  Utica,  549. 
Story  V.  Downey,  72,  77. 
Stotts  V.  Leonhard,  416. 
Stoudt  V,  Shepherd,  304. 
Stoughton's  Appeal,  355. 
Stoutenborough  v.   Rammel,  129. 
Stovall  V.  Johnson,  285. 
Stover  V.  Boswell's  Heirs,  248. 
Stowe  V.  Heywood,  304. 
Stowers  v.   Hollis,  393. 
Strang  v.  People,  63. 
Straus  V.  Straus,  196, 
Strauss  v.  Meertief,  491,  501,  503. 
Street  R.  Co.  v.  Bolton,  526. 
Strode  v.   Magowan's  Heirs,  44,  238. 
Stroebe  v.  Fehl,  106. 
Strohl  V.  Levan,  201. 
Strohm  v.  People,  380. 
Strom  v.  Strom,  74. 
Strong  V.  Beroujon,  349. 
V.  Foote,  395. 
V.  Moe,  335. 

V,  Iowa  Cent.  R,  Co.,  524. 
Stroup  V.  State,  367. 
Strouse  v.  Leipf,  72. 
Stuart  V.  Bute,  3C0. 
Studabaker  v.  Faylor,  447. 
Studwell  V.  Shapter,  433. 
Stull's  Estate,  In  re,  49. 
Stumm  V.  Hummel,  87. 
Sturgis  V.  Sturgis,  33,  48,  50. 


620 


OASES   CITED. 
[Tbe  figures  refer  to  pages.] 


Sturtevant  v.  Starin,  131. 

V.  State,  271. 
Stutz  V.  Armour,  531. 
Sullivan  v.  Fitcbburg  R.  Co.,  622,  525. 

V.  Flynn,  447. 

V.  Horgan,  483. 

V.  Sullivan,  217. 
Sullivan's  Case,  324. 
Sultan  V.   Misrahi,   132, 
Summers  v.  Phenix  Ins.  Co.,  488,  489. 
Sumner  v.  Nevin,  506. 

V.  Sumner,  185,  18G. 
Sunter  v.  Sunter,  340. 
Superior  Coal  &  Mining  Co.   v.   Kai- 
ser, 520,  521. 
Sutcliffe  V.  Atlantic  Mills,  484. 
Sutliff  V.  Forgey.  468. 
Suttle  V.   Choctaw,   O.   &  G.   R.   Co., 

523. 
Sutton  V.  Chetwynd,  170. 

V.  Des  Moines  Bakery  Co.,  514. 

V.  Huffman,  290,  802,  303. 

V.  Warren,  48,  49. 
Swain  v.  Duane,  142. 
Swan  V.  Dent,  372, 

V.  State,  463. 
Swartwood  v.  Chance,  443. 
Swartwout  v.  Oaks.  375. 

V,  Swartwout.   369. 
Swasey  v.  Vanderheyden's  Adm'r,  400. 
Sweeney  v.  Taylor  Bros.,  113,  114. 
Sweet  V.  Ohio  Coal  Co.,  514. 

V.  Sweet,  370. 
Sweetser  Pembroke  &  Co.,  In  re,  499. 
Swenson  v.  Swenson,  11. 
Swett  V.  Penrice,  131,  135. 
Swick  V.  Coleman,  245. 
Swiercz  v.  Illinois  Steel  Co.,  516,  517. 
Swift,  In  re,  370. 

V.  Bennett,  399. 

V,  Luce,  156,  160, 
Swift  &  Co.  V,  Johnson,  283. 
Swindall  v.  Swindall,  351. 
Swisher  v,  McWbinney,  375. 
Switzer  v.  Switzer,  186. 
Swoboda  v.  Ward,  513. 
Swope  v.  Chambers,  363. 
Sword  V.  Keith,  281. 


Swygart  v.  Willard,  463. 
Sykes  v.  Halstead,  206. 

V.  Lawlor,  295. 
Sylvis  V,  Sylvis,  198. 
Symons  v.   Road   Directors   for  Allfr- 
gany  County,  549. 


T.  V.  D.,  27. 

T,  V,  M.,  27. 

Tabb  V.  Archer,  166,  169,  170,  174. 

Taft  V.  Sergeant,  414. 

Taggard  v,  Innes,  451. 

Tagg  V.  McGeorge,  516. 

Tait  V.  Tait,  12. 

Talbot  V.  Bowen,  382. 

Tallmadge  v.  Grannis,  105. 

Tallman  v.  Jones,  121,  122. 

Tank's   Guardianship,    In   re,   324. 

Tanner  v.  Skinner,  257. 

Tanner's  Estate,  In  re,  340. 

TarbeU  v.  Tarbell,  166. 

Tartt  V.  Negus,  8. 

Tasker  v.  Shepherd,  499. 

V.  Stanley,  80,  81, 
Tatterson  v.  Manufacturing  Co.,  489. 
Tawney  v.  Crowther,  174,  175. 
Taylor,  In  re,  325,  421. 

V.  Bemiss,  347,  350. 

V.  Brown,  341. 

v,  Calvert,  340, 

V,  Carpenter,  469. 

V,  Daniel,  301. 

V.  Evausville  &,  T.  H.  R,  Co.,  532, 

V.  Green,  68. 

V.  Hemaigray,   373. 

V.  Hite,  345,  360. 

V.  Jeter,  312, 

V,  Kellogg,  345,  355. 

V,  Laird,  479,  481, 

V.  Meads,   142,   144. 

V.  Mechanics'  Savings  Bank,  277. 

V,  Minigus,  121. 

V.  Paterson,   509. 

V.  Philips,    356. 

V.  Rountree,  140. 
i         T.  Staples,  307. 


^ 


I 


CASES   CITED. 
[The  figures  refer  to  pages.] 


621 


Taylor  v.  Swett,  36. 

V.  Taylor,    29,    36,    39,    174,    203, 

205,  269,  308,  310. 
V.  Wands,  122. 
Taylor  Iron  &  Steel  Co.  v.  Nichols, 

507. 
Teagarden  v.  McLaughlin,  26L 
Tebbs  V.  Carpenter,  348. 
Tefft  V.  TefEt,  28,  41,  42. 
Teipel  v.  Vanderweier,  342. 
Tennessee  Cent.  R.  Co.  v.  Doak,  288, 

289. 
Tenney  v.  Evans,  332. 
Terry  v.  Hutchinson,  290,  292. 

V.  Johnson,  268. 
Teter  v.  Teter,  31,  33,  36. 
Texarkana   Lumber  Co.   v.   Lennard, 

501. 
Texas  &  P.  R.  Co.  v.  Nichols,  535. 

V.  Rogers,  522. 
Thacher  v.  Dinsmore,  332. 

V.  Phinney,  105. 
Thacker  v.  Henderson,  357. 
Thacker  Coal  &  Coke  Co.  v.  Burke, 

538. 
Thackrah  v.  Haas,  460. 

V.  Medlicott,  460. 
Thaw  V.  Ritchie,  358. 
Thayer  v.  St.  Louis,  A.  &  T.  H.  R. 
Co.,  531. 
V.  White,  259. 
Thewlis'  Estate,  In  re,  44. 
Thiesing  v.  Thiesing,  274. 
Thing  V.  Libbey,  414. 
Thomas  v.  Bennett,  349. 
V.  Brown,  186. 
V.  Burrus,  371. 
V.  Chicago,  93,  106. 
V.  Dike,  424. 
V.  Hatch,  489. 
V.  Roberts,  324. 
V.  Sheppard,  104. 
V.  State,  462. 

V.  Thomas,  29,  62,  196,  219,  255. 
Thomasson  v.  Boyd,  410,  411. 
Thomond  v.  Suffolk,  139. 
Thompson  v.  Boardman,  355. 


Thompson  v.  Brown,  128. 
V.  Havelock,  496. 
V.  Howard,   304. 
V.  Lay,  414. 

V.  Metropolitan  St.  R.  Co.,  76. 
V.  Millar,    302. 
V.  Minnich,  119,  157 
V.  Ross,  291. 
Thoren  v.  Attorney  General,  30. 
Thormaehlen  v.  Kaeppel,  435. 
Thorn  v.  Anderson,  154. 
Thornburn  v.  Doscher,   108. 
Thorndike  v.  Hinckley,  371. 
Thome  v.  Kathan,  132. 
Thorp  V.  Thorp,  48.  49. 
Thorpe  v.  Shaplcigh,  132. 
Threewits  v.  Threewits,  218. 
Thrift  V.  Payne,  495. 
Thrupp  V.  Fielder,  409. 
Thurlow  V.  Gilmore,  408. 

V.  Massachusetts,  470. 
Thurman  v.  State,  454. 
Thurston  v.  Thurston,  228. 
Thyng  v.  Fitchburg  R.  Co.,  535. 
Thyssen    v.    Davenport    Ice   &    Cold 

Storage  Co.,  547. 
Tibbets  v.  Gerrish,  409. 
Tiemeyer  v.  Turnquist,  161. 
Tiernan  v.  Binns,  173. 
Tierney  v.   Minneapolis   &   St.   L.   R. 

Co.,  529,  530. 
TiCft  V.  Tifft,  261. 
Tillery  v.  Land,  125,  389,  422. 
Tilley  v.   Rockingham   County   Light 

&  Power  Co.,  519,  528. 
Tillman   v.   Shackleton,   120,   159. 
Tillotson  V.  McCrillis,  281. 
Tilton  V.  Tilton,  209,  219. 
Timberlake  v.  Thayer,  509. 
Tlmerson  v.  Timerson,  218. 
Times-Democrat   Pub.   Co.   v.   Mozee, 

76. 
Tlmmings  v.  Timmings,  215,  219. 
Tipping  V.  Tipping,  95. 
Titcomb  v.  Vantyle,  443. 
Tittman  v.  Green,  363. 
Tobey  v.  Wood.  402,  410.  411,  413,  414. 


622 


CASES  CITED. 
[The  figures  refer  to  pages.] 


Todd  V.  Clapp,  402,  411,  413. 
V.  Lee,  163. 
V.  Stoakes,  134. 
V.  Todd,  212,  216. 
V.  Weber,  249,  250. 
Toledo,  W.   &  W.   R.  Co.   v.  Grable, 
427,  429. 
V.  Harmon,  545. 
V.  Ingraham,  511. 
Toman's  Estate,  In  re,  338. 
Tomczek  v.  Wieser,  389,  401. 
Toogood  V.    Spyring,   5U6. 
Topping  V.  ^yindley,  364. 
Torre  v.  Summers,  86. 
Torrens  v.  Campbell,  280. 
Torry  v.  Black,  349,  355. 
Tourney  v.   Sinclair,  187. 
Towle  V.  Dresser,  382,  389,  404,  419. 
Town  of  Canaan  v.  Avery,  240. 
Town     of    Craftsbury    v.     Town    of 

Greensboro,  282. 
Town  of  Hudson  v.  Hills,  247,  250. 
Town    of    Londonderry    v.    Town    of 

Chester,  32,  33. 
Town  of  Mountholly  v.  Town  of  An- 

dover,  41. 
Town  of  Northfield  v.  Town  of  Brook- 
field,  282. 
Town  of  Poultney  v.  Town  of  Glover, 

282. 
Town  of  Rockingham  v.  Town  of  Mt. 

Holly,  235. 
Town  of  Ton'ington  v.  Town  of  Nor- 
wich, 275. 
Towne  v.  Wiley,  432. 
Townsend    r.   Huntzinger,    119,    155, 
156. 
V.  Kendall,  329,  337. 
V.  Langles,  521. 
V.  Tallant,  363. 
V.  Townsend,  205. 
Townsley  v.  Chapin,  125. 

V.  Moore,  484. 
Tracy  v.  Keith,  116. 
V.  Roberts,  35& 
Trader  v.  Jarvis,  392. 
V.  Lowe,  342,  414. 


Trammell  v.  Trammell,  425. 
Trapnell    v.    Conklyn,    153,    164,   280, 

285. 
Trask  v.  Patterson,  104. 
Ti-avers  v.  Reinhardt,  48. 
Trayer  v.  Setzer,  235,  250. 
Treasurer  of  Insane  Hospital  t.  Bel- 
grade, 440. 
Ti-effinger  v.  M.  Groh's  Sons,  482. 
Trevor  v.  Trevor,  109. 
Triokey  v.  Clark,  525. 
Trieber  v.  Stover,  121. 
Trigg  V.  Trigg,  224. 
Trimble  v.  Dodd,  257,  258L 

V.  Spiller,  289,  296. 
Tritt  V.  Colwell,  98. 
Tritt's  Adm'r  v.  Colwell's  Adm'r,  96, 

98. 
Troy  Fertilizer  Co.  v.  Logan,  501. 
True  V.  Ranney,  17,  42,  48. 
Trueblood  v.  Trueblood,  382,  388. 
Trueman  v.  Hurst,  400. 
Trust  Co.  V.  Sedgwick,  68. 
Tnbb  V.  Harrison,  255. 
Tucke  V.  Buchholz,  366. 
Tucker  v.  Gordon,  97. 

V.  McKee,  331. 

V.  Moreland,  412,  415,  416,  419. 

V.  Preston,  480,  509. 
Tucker's    Lessee    v.    Moreland,    387, 

392. 
Tudhope  v.  Potts,  372. 
Tuller  V.  Voght,  544. 
Tullis  V.  Hassell,  494. 
Tully,  In  re,  324,  325. 
Tune  V.  Cooper,  93. 
Tunison  v.  Chamblin,  401,  416. 
Tupper  V.  Cadwell,  397,  398. 
Turnbull  v.  Turnbull,  217. 
Turner,  In  re,  324. 

V.  Davenport,  91,  92,  154. 

V.  Estes,  81,  82. 

V.  Flagg,  331,  372. 

V.  Gaither,  396,  414. 

V.  Mason,  495. 

V.  Meyers,  18. 

V.  Rusk,  449. 


i 


CASES  CITED. 
[The  figures  refer  to  pages.] 


623 


Hirner  v.  Smithers,  477. 

V.  Street,  343. 

V.  Trisby,  394. 
Turtle  V.  Muncy,  90,  95. 
Turton   v.   Turton,  9& 
Tuttle  V.  Hoag,  121. 
Tyler,  In  re,  355. 

V.  Gallop's  Estate,  411,  425. 

V.  Tyler,  30,  50. 
Tyrrell  v.  Hope,  142. 


u 


Udell  V.  Kenney,  98,  99,  100. 
Uecker  v.  Koehn,  412,  417. 
Uhlmann  v.  Uhlmann,  194. 
Ulrich  V.  Arnold,  481. 

V.  Hower,  493. 
Umlauf  V.  Umlauf,  273,  274. 
Underwood  v.  Deckard,  382. 
Unger  v.  Mellinger,  168,   182. 
Union  Pac.  R.  Co.  v.   Erickson,  535. 
V.  Fort,  522. 
V.  McDonald,  427,  428. 
United   Oil   &  Refining  Co.   v.   Grey, 

493,  497. 
U.  S.  V.  Baiubridge,  278,  391. 
V.  Blakeney,  391. 
V.  De  Walt,  209, 
V.  Drew,  461. 
V.  Green,  270,  271,  273. 
V.  McGlue,  462. 
V.  Terry,  62. 
United  States  Cement  Co.  v.  Cooper, 

514. 
United    States    Fidelity    &   Guaranty 

.Co.  V.  State,  347. 
United  States  Inv.  Corp.  v.  Ulrickson, 

382. 
United  States  Mortgage  Co.  v,  Sperry, 

356. 
United    States   Rolling    Stock    Co.   v. 

Chadwick,  521. 
United  States  Wind  Engine  &  Pump 

Co.  V.  Butcher,  521. 
Unity     Joint-Stock      Mut.      Banking 
Ass'n,  Ex  parte,  434. 


University   of   Michigan   v.    McGuck- 

in,  9. 
Upstone  V.  People,  461. 
Usher  v.  Western  Union  Tel.  Co.,  542. 
Utah  Consol.  Min.  Co.  v.  Paxton,  523. 
Utterton  v.  Tewsh,  217. 


Vaiden  v.  Stubblefield's  Ex'r,  339. 
Vail  V.  Meyer,  160,  163. 
Valentini  v.  Canali,  421. 
Vallance  v.  Bausch,  149. 
Vallandingham  v.  Johnson,  415. 
Valleau  v.  Valleau,  192. 
Vallery  v.  State,  506. 
Van  Aernam  v.  Van  Aernaiii.  241. 
Van  Alst  v.  Hunter,  458. 
Vanata  v.  Johnson,  151. 
Vanatta  v.  Carr,  282. 
Van  Beuren's  Estate,  In  re,  326. 
Vance  v.  Calhoun,  284. 

V.  Word,  433. 
Vanderbilt  v.  Turnpike  Co.,  544. 
Vanderburg  v.  Williamson,  358. 
Van   Derheyden   v.    Van   Derheyden, 

350. 
Van  Derlyn  v.  Mack,  244. 
Van   Deusen  v.   Sweet,  444. 
Van  Dusan  v.  Van  Dusan,  37. 
Van  Dusen  v.  Letellier,  513. 
Van   Duzer  v.   Van   Duzer,   104,   105, 

196. 
Van  Epps  v.  Van  Deusen,  99,  101,  322. 
Van  Fossen  v.  State,  189. 
Van  Guysling  v.  Van  Kuren,  457. 
Van  Horn  v.  Freeman,  302. 
V.  Hann,  445. 
V.  Keenan,  459. 
Van   Inwagen  v.   Van   Inwagen.  211. 
Van  Orsdal  v.  Van  Orsdal,  229. 
Van  Patton  v.  Beals,  447. 
Vansickle  v.  Wells,  Fargo  &  Co.,  92. 
Van  Sittart  v.  Van  Sittart,  275. 
Van  Tassel  v.  State,  250. 
Van  Tuyl  v.  Van  Tuyl,  32,  33,  34,  85, 

36,  37. 


624  CASES  CITED. 

[The  figures  refer  to  pages.] 

Vanuxem  v.  Bostwick,  499. 

Van  Vacter  v.  McKillip,  78,  85. 

Van  Valkinburgh  v.  Watson,  254,  394. 

Van   Voorhis  v.  Brintnall,  48. 

Van   Walters  v.  Board  of  Children's 

Guardians  of  Marion  County,  380. 
Van  Winkle  v.  Satterfield,  502. 
Van  Wyck  v.  Brasher,  459. 
Variety   Mfg.   Co.   v.   Landaker,  542. 
Varner's  Appeal,  142. 
Varney  v.  Young,  281. 
Vason  V.  Bell,  169,  343. 
Vasse  V.  Smith,  430,  438. 
Vaughan  v.  Rhodes,  304,  305. 
Veal  V.  Fortson,  407. 
Vehue  v.  Pinkham,  424. 
Vent   V.   Osgood,    388,   390,   403,   415, 

423,  424. 
Verholf  v.  Van  Jouwenlengen,  87. 
Vermilya  v.  Bunce,  374. 
Vernon  v.  Vernon,  170. 
Verser  v.  Ford,  268,  269. 
Vetten  v,  Wallace,  250. 
Vldalis    Compress    &    Power    Co.    v. 

Mathews,  496. 
Viertel  v.  Viertel,  214,  215. 
Village  of  Montgomery  v.  Robertson, 

514. 
Villard  v.   Robert,  335. 
Villareal  v.  Mellish,  267. 
Vilter  Mfg.  Co   v.  Kent,  517. 

V.  Otte,  534. 
Vincent  v.  Ireland,  91,  154. 

V.  Starks.  349. 
Vindicator  Consol.  Gold  Min.  Co.  v. 

Firstbrook,  524. 
Vine  V.  Saunders,  65,  66.  • 
Vinson  v.  State,  436. 

V.  Willingham   Cotton  Mills,  512. 
Vinton  V.  Beamer,  110. 

V.  Schwab.  512,  518. 
VIou  V.  Brooks-Scanlon  Lumber  Co., 

523. 
Virgin  V.  Marwick,  244. 
Virtue  V.  People,  55. 
Vischer  v.  Vischer,  190. 
Vizonneau  v.  Pagram,  143. 


Vocht  V.  Kuklence,  71,  72. 

Voessing  v.  Voessing,  350. 

Vogel  V.  American  Bridge  Co.,  527. 

Vohs  V.  Shorthill  &  Co.,  517. 

Voltz  V.   Voltz,  365. 

Vondal  v.  Vondal,  11. 

Von  Glahn  v.  Von  Glahn,  199. 

Von  Heyne  v.  Tompkins,  494,  497. 

Voorheea  v.  Presbyterian  Church,  17& 

A'ossel  V.  Cole,  296,  300,  302,  303. 

Vreeland's  Ex'rs  v.   Ryno's  Ex'r,  93, 

95. 
N'usler  t.  Cox,  131. 

w 

W V.  H ,  26. 

Wabash  R.  Co.  v.  Hassett,  534. 

V.  McDaniels,  515. 
Wackerle  v.  People,  369. 
Wade  V.  Kalbfleisch,  4,  7. 

V.  Lobdell,   362. 

V.  Pulsifer,  366. 

V.  Wade,  112,  113. 
Wadleigh  v.  Newhall,  268,  269. 
Wadsworth  v.  Sharpsteen,  460. 

V.  Wadsworth,  467. 
Wagener  v.  Bill,  62. 
Waggoner  v.  Miller,  249. 
Wagner  v.  Nagel,  129. 

V.  Varner,  244,   245. 

V.  Wagner,    196,    207. 
Wagoner  v.  State,  437. 
Wagstaff  V.  Smith,  142. 
Wailing  v.  Toll,  397. 
Wainwright   v.    Wilkinson,    383,   388. 
^\ait  V.  Maxwell,  445,  448. 
Wakefield  v.  Boston  Coal  Co.,  541. 

V.  Mackay,  10,  11. 
Wakeham  v.  Barker,  504. 
Waldron  v.  Waldron,  85,  197,  330. 
Waldron's  Case,  270. 
Wales  V.  Coffin,  110,  111. 

V.  Miner,  86. 
Walkenhorst  v.  Lewis,  385. 
Walker   v.   British    Guarantee   Ass'n, 
507. 


CASES   CITED. 
[The  figures  refer  to  pages.] 


625 


Walker  v.  Oronln,  537,  538. 

V.  Davis,  430. 

V.  Denison,   488. 

T.  Laighton,  58,  131,  132,  133,  201, 
203. 

T.  Reamy,  74. 

V.  Simpson,  131,  137. 

V.  Walker,  345. 

V.  Walker's  Ex'r,  186. 

V.  Wetherell,  335. 

V.  Winn,  444. 
Walker's   Adm'r   v.   Walker's  Adm'r, 

96. 
Walker's   Case,   106. 
Walker's  Estate,  In  re,  27. 
Wall  V.  Stanwick,  322,  338. 

V.  Tomllnson,  98. 
Wallace  v.  Burden,  94. 

V.  Clark,  303. 

V.  De  Young,  506. 

V.  Floyd,  482. 

V.  Holmes,  359. 

V.  Leroy,  396,  398. 

V.  Morss,   434. 

V.  Reddick,  309. 

V,.  Swepston,  374. 

V.  Wallace,  142,  238. 
Wallace's  Lessee  v.   Lewis,  405,  412, 

416. 
Waller  v.  Armistead's  Adm'r,  366. 
Wallin  V.  Higtiland  Park  Co.,  396. 
Walling,  In  re,  374. 
Wallingsford  v.  Allen,   179,  180,  181. 
Wallis  V.  Bardwell,  398. 
Walls,  Appeal  of,  362. 

V.  State,  22,  23. 
Walmesley  v.  Walmesley,  198. 
Walsh  V.  Young,  420. 
Waltermire   v.  Waltermire,   195,   196. 
Walters  v.  Chicago,  R.  I.  &  P.  R.  Co.. 

429. 
Walton  V.  Walton,  203,  208,  310. 
Wambold  v.  Vick,  281,  285. 
Wamsley  v.  Lindenberger,  390. 
Waples  T.  Hastings,  388. 
Warburton  v.  White,  114. 
Ward,    In   re,   333.   364. 

TIFF.P.&  I).Rel.(2d  Ed.)-^0 


Ward  T.  Ames,  491. 

V.  Anderson,  413,  422. 

V.  Dulaney,  17,  19. 

V.  Larerty,  425. 

V.  Rogers,  451. 

V.  Roper,  329. 

V.  Ward,  205,  268. 
Ware  v.  Cartledge,  390. 

V.  Coleman,  326. 

T.  Polhlll,   353. 

V.  Ware,  347. 

V.  Ware's   Adm'r,  96. 
Waring  v.  Darnall,  349. 

V.  Waring,  199. 
Waring's  Will,  In  re,  319. 
Warner  v.  Warner,  202,  207,  218. 
Warrender  v.  Warrender,  4,  48. 
Warren  v.  Warren,  85. 
Warwick  v.   Cooper,  390. 
Washabaugh  v.  Hall,  357. 
Washaw  t.  Gimble,  270,  272,  275. 
Washburn  v.  Abrams,  305. 

V.  Hale,  95. 
Washington  University  v.  Finch,  470. 
Washington  &  G.  R.  Co.  v.  McDade, 

511. 
Waterman  v.  HIggins,  180. 

V.  Wright,  3G8. 
Waters  v.  Ebrall,  354. 
Watklns,  Ex  parte,  360. 

V.  De  Armond,  131,  135. 

V.  Watklns,  4,   189. 

V.  Young,   310. 
Watkins'   Adm'rs  v.   State,  363. 
Watklns  &  Thurman  v.   Napier,  487. 
Watson  V.  Cross,  395. 

V.  Ruderman,  390,  403. 

V,  Warnock,  324. 

V.  Watson,  201. 

V.  Wrightsman,  430. 
Watt  V.  Allgood.  361. 

V.  Smith.  442. 

V.  Watt,  102. 
Watts  V.  Cook,  35a 

V.  Gantt,  162. 

V.  Owens,  237,  238,  242. 

V.  Watts,  54. 


626 


CASES  CITED. 
[The  figures  refer  te  pages.] 


Waxelbaum  v,  Llmberger,  49S. 
Way  V.  Illinois  Cent.  R,  Co.,  521. 
Waymlre  t.  Jetmore,  43. 
Wayne  v.  Lewis,  121. 
Weatherford  v.  Weatherford,  S7. 
Weathersbee  v.  Blanton,  336. 
Weatherston  v.  Hawkins,  506. 
Weaver  v.  Bachert,  299. 
V.  Glenn,  385. 
V.  Jones,  389. 
V.  Thornton,  362. 
V.  Ward,  451. 
Webb   V.  England,  504. 
Webber  v.  Spannhake,  135. 
Webster  v.  Conley,  3G0. 
V.  Wadsworth.  333. 
V.  Webster,  29. 
V.  Woodford,  443. 
Weed  V.  Ellis,  349. 
Weedon  v.  Timbrell,  86, 
Weeks  v.  Holmes,  279. 
V.  Merrow,  254. 
V.  Wilkins,  406. 
Weems  v.  Bryan,  104. 
Weigand  v.  Weigand,  202. 
Weil  V.  Dry  Dock,  E.  B.  &  B.  R. 

429. 
Weingreen  v.  Beckton,   128. 
Weir  V.  Marley,  275. 
Weisberg  v.  Weisberg,  24. 
Weise  v.  Board  of  Supervisors  of 

waukee,  482. 
Weisker  v.  Lowenthal,  131,  135. 
Weiss  V.  Coudrey,  385. 
Welch  V.  Bunce,  403. 

V.  Carlucci  Stone  Co.,  521. 
V.  Goodwin,  550. 
V.  Welch,  215,  220,  272,  273, 
Weld  V.  Johnson  Mfg.  Co.,  358. 
Weller  v.  Baker,  90,  105. 

V.  Suggett,  360. 
Wellesley  v.  Duke  of  Beaufort, 
268,  320,  324. 
V.  Wellesley,  208.   337. 
Wells  V.  Andrews,  361, 
V.  ChafBn,  357. 
V.  Fletcher,  40. 


Co. 


MU- 


274 


257, 


Wells  V.  Selxas,  406. 
V.  Smith,  385. 
V.  Scut,   186. 
V.  Steckleberg,  367. 
V.  Tyler,  96,  97. 
V.  Wells,   379. 
Wells'  Estate,  In  re,  34. 
Wendel  v.  Wendel,  10,  26. 
Wenham  v.   State,  478. 
Wenning  v.  Teeple,  45. 
Weringer's  Estate,  In  re,  138. 
Werner  v.   Werner,  40. 
Werner's  Appeal,  395. 
Wertz  v.  Wertz,  18. 
Wescott  V.  Upham,  374. 
West  V.   Gregg's  Adm'r,  398. 
V.  Laraway,  163. 
V.  Russell,  443,  444. 
Westbrook  v.  Comstock,  373. 
West  Duluth  Land  Co.  v.  Kurtz,  358. 
Western  Coal  &  Mining  Co.  v.  Burns, 

523. 
Western  Union  Tel.  Co.  v.  Greer,  395, 
417. 
V.  Semmes,  491. 
Westerv'elt  v.  Gregg,  152. 
Westinghouse,    Church,    Kerr    &    Co. 

V.  Callaghan,  524,  525,  532,  534. 
Westlake  v.  Westlake,  82,  85. 
Westman  v.  Wind  River  Lumber  Co., 

514. 
Westmeath   v.   Westmeath,    194,    190, 

217,  218,  219. 
Weston  V.   Stuart,  349, 
Whalen  v.  Michigan  Cent.  R.  Co.,  520, 

V.  Pennsylvania  R.  Co.,  551, 
Wharton  v.  Christie,  490. 

v.  Mackenzie,   395. 
WTiarton's  Estate,  In  re,  235, 
Whatman  v.  Pearson,  541, 
Wheaton  v.  East,  410,  412, 
Wheeler  v.  Berry,  522. 
V.  Bowen,   97. 
V.  Hollis,  337, 
V.  Moore,   97. 
v.  Reed,  550. 
V.  St.  Joseph  &  W,  R.   Co.,  S07 


CASES   CITED. 
[The  figures  refer  to  pages.] 


627 


Wheeler  r.  Wheeler,  209. 

Wheeler  &  Wilson  Mfg.  Go.  t.  Hell, 

65,  72. 
Whelan  v.  Cook.  470. 
Whippen  v.  Whippen,  50. 
Whipple  V.  Dow,  255,  258. 
Whlrley  v.  Whiteman,  429. 
Whlspell  V.  Whispell,  194. 
Whisterlo's  Case,  242. 
Whitacre  v.  Whitacre,  193. 
Whitaker,  In  re,  368. 

V.  Warren,   293,  294,   29T. 

V.  W^hitaker,  94,  102. 
Whitbourne  v.  Williams,  300. 
Whitcomb  v.  Joslyn,  434. 
White,  Ex  parte,  436. 

V.  Bigelow,  176. 

V.  Henry,  279,  282. 

V.  Howard,  337. 

V.  Laurel   Land   Co.,   382. 

V.  Lowe,  40. 

V.  Mann,  253. 

V.  Murtland,  291,  800,  301. 

V.  NeUis,  302. 

V.  Owosso   Sugar  Co.,  517. 

V.  Parker,  338,  340,  348,  350. 

V.  Pomeroy,  323. 

V.  Ross,  82. 

V.  Sikes,    389,   403,   418,   420. 

V.  Wager,  178,   181. 

V.  White,  31,   36. 
Whitebourne  v.  Williams,  300. 
White  Sewing  Mach.  Co.  v.  Shaddock, 

487. 
Whitesides  v.  Dorris,  99. 
Whitfield  V.  Whitfield,  202. 
Whiting  V.  Dewey,  359,  360. 

V.  Earle,   281,   284. 
Whitmarsh  v.  Hall,  403,  415,  424^ 
Whitmore  v.  Delano.  65. 

V.  Werner,  490. 
♦Vhltney  v.  Dutch.  387,  389,  409. 

V.  Hitchcock,    296. 
Whittemore  v.  Elliott,  390. 
Whlttingham   v.   HUl.  398. 
Whittingham's    Case,    407. 
Whittlesey  v.  Fidler,  111. 
Wickiser  v.   Cook,   365. 


Wicks  V.  Mitchell,   163. 
Wieland  v.   Kobick,  434. 
Wierbach's  Ex'r  v.  Bank,  450. 
Wier  V.  Still,  10,  11. 
Wiggins  V.  Keizer,  249,  250. 
Wigglesworth  v.  Steers,  460. 
Wightman  v.  Wightman,   38,  43. 
Wikstrom  v.  Preston  Mill  Co.,  517. 
Wilbur  V.  Crane,  250. 
Wilcox  V.  Roath,  409. 

V.  Wilcox,  32,  51. 
Wilder  V.  Aldrich,  96. 

V.  Brooks,  179,  180. 

V.  Richie,  153. 

V.  Weakley's   Estate,  447. 
Wilhelm  v.  Hardman,  417,  421. 
Wilhoit  V.  Hancock,  303, 
Wilkins'  Guardian,  337. 
Wilkinson  v.  Buster,  427. 

V.  Deming,   274. 
Willard  v.  Eastham,  146,  147. 

V.  Willard,  13. 
Willets  V.  Green,  497,  498. 
William  Grace  Co.  v.  Kane,  514. 
Wm.  Rogers  Mfg.  Co.  v.  Rogers,  6W. 
Williams  v.  Chitty,  167. 

V.  Cleaveland,  316,  384. 

V,  Goss,  208. 

V.  Harrington,  356. 

V.  Harrison,  389. 

V.  Hays,  451. 

V.  Hugunin,    119,    150,    100,    162, 
163. 

V.  Inabnet,   460. 

V.  Kilburn,  31. 

V.  Kimball,   249. 

V.  Monroe,  136. 

V.  Moor,  388. 

V.  Morton,  358,   370. 

V.  Powell,  365. 

V.  Prince,  133. 

V.  Pullman   Palace  Car  Co.,   545. 

V.  Sleepy   Hollow   Mln.   Co.,   513, 
514. 

V.  Sloan,  97. 

V.  State,    14,    28,   41,   437. 

V.  Walker,    121. 

V.  Wentworth,  446. 


628 


CASES   CITED. 
[The  figures  refer  to  pages.] 


Williams    v.    Williams,   85,    194,    19S, 

203,  204,  228,  339,  340,  358. 
Williams'  Case,  355,  356. 
Williamson  v.  Watts,  400. 

V.  Williamson,   188. 
Williamson  Iron  Co.  v.  McQueen,  528. 
Willick  V.  Taggart,  360. 
Willis  V.  Bernard,  80. 

V.  Com.,  463. 

V.  Fox,  355. 

V.  Toledo,  A.  A.  &  N.  M.  R.  Co., 
481. 

V.  Twambly,  390,  404. 
Willlts  V.  Willits,  22. 
Willoughby  v.  Thomas,  501,  503. 
Wills'  Appeal,  355. 
Willwerth  v.  Leonard,  448. 
Wilmington  Coal  Min.  &  Mfg.  Oo.  v. 

Lamb,  487. 
Wilmot  V.  McPadden,  429,  547. 
Wilson,  Ex  parte,  209. 

V.  Allen,  29. 

V.  Brockley,  41. 

■V.  Buchanan,  183. 

V.  Fidelity  Trust  Co.,  365. 

V.  Ford,  136. 

V.  Frost,  110. 

V.  Garrard,  261,  431. 

V.  Glossop,  133. 

V.  Jones,  146,  147. 

V.  McMillan,  281,  285,  286. 

V.  Maryland    Life   Ins.    Co.,   414. 

V.  Mitchell,   457. 

V.  Peverly,  542. 

V.  Southern  Ry,,  531. 

V.  Wilson,  114,  185,  215,  223,  363. 

V.  Winona  &   St.   P.  R.  Co.,  523. 
Wilson's  Trusts,  In  re,  28,  29. 
Wilt  V.  Welsh,  433. 
WUton  V.  Middlesex  R.  Co.,  287,  288, 

289. 
Wimberly   v.   Jones,  432. 
Winans  v.  Peebles,  178,  18L 
Winchester  v.  Reid,  286. 
Windsor  v.  McAtee,  370. 
Winestlne  v.  Ziglatski-Marks  Co.,  104. 
Wing  V.  Hurlburt,  136. 
Winslow  V.  State,  278,  279. 


Winsmore  v.  Greenbank,  80. 
Winter  v.  Henn,  85,  86,  87. 
Winterburn  v.  Brooks,  264. 
Winters  v.  Kansas  City  Gable  R.  Co., 

430. 
Wirebach's  Bx'r  v.  Bank,  460. 
Wirgman  v.  Miller,  162. 
Wirsig  V.  Scott,  325. 
Wiseman  v.  Panama  R.  Co.,  508. 
Wiser   v.   Lockwood's   Estate,   19,   20. 
Withers  v.  Hickman,  333,  335. 
Witter  V.  Witter,  353. 
Wodell   V.   Coggeshall,  278,   283,   290, 

305. 
Wolcott  V.  Connecticut  General  Life 

Ins.  Co.  445. 
Wolf  V.   Schulman,  132. 
Wolfe  y.  Howes,  499. 

V.  State,  374. 
Wolfe's  Estate,  In  re,  364. 
Wolfif  V.  Wollf,  198,  219. 
Womack  v.  Womack,  421. 
Wood,  Ex  parte,  379. 

In  re,  342,  363. 

V.  Baker,  23,  41. 

V.  Black,  370. 

V.  Downes,  366. 

V.  Losey,  398. 

V.  Mathews,  85,  86. 

V.  Stafford,   369. 

V.  Wood,   149,   150,   188,  202,  220, 
223,  225,  329,  337,  338. 
Woodbury  v.  Hammond,  368. 
Woodman  v.  Chapman,  140. 

V.  Hubbard,  432. 
W^oodrow  V.  Hawving,  493,  507. 
Woods  V.  Boots,  353. 

V.  Richardson,   166. 
Woodstock  Iron  Works  v.  Kline,  516. 
Woodward  v.  Anderson,  299. 

V.  Barnes,   68,   69,   128,   129,    131. 

V.  Walton,  299. 

V.  Washburn,  537. 

V.  Woodward,  214,  215. 
Woodward  Iron  Co.  v.  Curl,  515. 
Woodworth  v.  Spring,  360. 
Woolf  V.  Pemberton,  384. 
Woolston's  Appeal,  183. 


CASES   CITED. 


629 


[The  figures  refer  to  pages.] 


Wornock  v.  Loar,  35)8- 

Worrell's  Appeal,  350,  352. 

Worsley  v.  Worsiey,  218. 

Worth  V.  Curtis,  357. 

Worthy  v.  Jonesville  Oil  Mill,  390. 

Wray  v.  Wray,  192. 

Wren  v.  Gayden,  362. 

V.  Kirton,  339. 
Wright,  In  re,  316,  456. 

V.  Blackwood,  160. 

V.  City  of  Omaha,  77. 

V.  Comley,  354. 

V.  Graham,  469. 

V.  Hicks,   238,   240,  241,  242. 

V.  Jackson,  457. 

V.  Kerr,  65. 

V.  Lake,  494. 

V.  Leonard,  67,  68. 

V.  Leupp,  254. 

V.  London  &  N.   W.  R.  Co.,  526. 

V.  McNatt,  384. 

V.  Naylor,  328. 

V.  Saddler,   110. 

V.  Vanderplank,   308. 

V.  Wilcox,  544. 

V.  Wright,  247,  250. 
Wuest  V.  Wuest,  188. 
Wuesthoff  V.  Germania  Life  Ins.  C5o., 

373. 
Wunderle  v.  Wunderle,  468,  469. 
Wusuig  V.  State,  436. 
Wyatt  V.   Simpson,  105. 

V.  Smith,  152. 
Wyckoff  V.  Boggs,  33. 
Wyeman  v.  Deady,  539. 
Wyman  v.  Hooper,  341. 
Wythe  V.  Smith,  151. 
W.  &  J.  Sloane  v.  Boyer,  131,  135. 


Yale   v.   Dederer,   119,    146,   147,   102, 
163,   164. 


Yardley's  Estate,  In  re,  54,  200. 
Yates  V.  Boeu,  443. 

V.  Houston,  45. 

V.  Lyon,  390. 
Yeager's  Appeal,  362. 
Yeakle  v.  Winters,  372. 
Yeatman  v.  Yeatmftn,  201. 
Yerrington  v.  Greene,  498^  508. 
Yesler  v.  Hochstettler,  113. 
Yohe  V.  Bamet,  101. 
Yopst  V.  Yopst,  90. 
York  V.   Hilger,   113,  114. 
York's  Case,  436. 
Yost  \.  State,  373,  374,  375. 
Youn  V.  Lamont,  459. 
Young  V.  Biehl,  111. 

V.  Hart,  118. 

V.  Herman,  309. 

V.  Hiner,  426. 

V.  Lorain,  359,  360,  369. 

V.  McFadden,  157. 

V.  McKee,  412,  417. 

V.  Muhling,  432. 

V.  Stevens,  447. 
Youngs  V.  Youngs,  193,  209. 
Younkin  v.  Rocheford,  542. 
Yundt  V.  Hartrunft,  86. 


Zachary  v.  Cadenhead,  140. 
Zahorka  v.  Geith,  28. 
Zeideman   v.   Molasky,  322.  329. 
Zeis  V.  St.  Louis  Brewing  Ass'n,  517. 
Zent  V.  Sullivan,  136. 
Zorntlein  v.  Beam,  111. 

V.  Bram,  110. 
Zouch  V.  Parsons,  389,  390,  392,  393, 

403. 
Zuck  V.  Turner  Harness  &  Carriage 

Co.,  419. 
Zuckerman  v.  Munz,  114- 
Zundell  v.  Gess,  468. 


II 


INDEX. 


[THI  riQUBES  REFER  TO  PAGES.] 


A 

ABANDONMENT, 

right  of  husband  and  wife  to  cohabitation  and  Intercourse,  53. 
change  of  domicile  by  husband,  refusal  of  wife  to  follow,  58. 
of  wife  by  husband,  effect  on  wife's  power  to  contract,  .117. 

effect  on  wife's  power  to  bind  husband  for  necessaries,  132. 
desertion  as  ground  for  divorce,  199. 

cessation  of  cohabitation,  200. 

period  of  abandonment,  202. 

intention  to  abandon,  203. 

consent  of  the  abandoned  spouse,  204. 

misconduct  of  the  abandoned  spouse,  207. 
of  child  by  parent,  251. 

liability  of  parent  for  child's  necessaries,  251. 

as  an  emancipation  of  the  child,  282. 
of  employment  by  servant,  492. 

ABDUCTION, 

of  child,  action  by  parent,  304. 

ACCOUNTING, 

by  guardian,  361. 

see  Guardian  and  Ward. 

ACTIONS, 

see  particular  titles. 

ADMINISTRATION, 

of  wife's  estate  by  husband,  101. 

ADOPTION, 

of  children,  242. 

status  of  adoptive  parent  and  child,  243. 

descent  and  distribution  of  property,  244. 

ADULTERY, 

as  a  ground  for  divorce,  191. 

connivance,  213. 

condonation,  217. 

recrimination,  221. 
actions  for  criminal  conversation,  by  husband,  85. 

by  wife,  87. 

TiFr.P.&  D.Rel.(2d  Ed.)  (631) 


632  INDEX. 

[The  figures  refer  to  pages.] 
ADULTERY— <!ontlnued, 

effect  on  wife's  power  to  charge  husband  for  necessaries,  138. 

as  a  justification  for  abandonment,  207. 

ADVANCEMENTS, 

from  parent  to  child,  309. 

AFFINITY, 

effect  on  validity  of  marriage,  23. 
AGE, 

of  consent  to  marriage,  20. 

of  majority,  379. 
see  Infants. 
AGENCY, 

see  Master  and  Servant;    Principal  and  Agenl 

AGREEMENTS, 
see  Contracts. 

ALIENATION  OP  AFFECTIONS, 
of  wife,  action  by  husband,  79. 
of  husband,  action  by  wife,  83. 

ALIENS, 

defined,  464. 

are  subject  to  the  laws,  465. 

rights  and  liabilities  of  alien  friends,  466. 

alien  enemies,  469. 
naturalization,  470. 

ANNULMENT, 

of  marriages,  38. 
jurisdiction,  42. 
see  Divorce. 

ANTENUPTIAL  CONTRACTS, 

validity  of  provisions,  165. 

marriage  as  a  consideration,  168. 

validity  as  to  creditors,  171. 

reasonableness  of  provisions,  173. 

settlements  based  on   antenuptial  contracts,  174 

statute  of  frauds,  175. 

ANTENUPTIAL  DEBTS, 

of  wife,  liability  of  husband,  13«. 

APPOINTMENT, 
of  guardian,  323. 

see  Guardian  and  Ward. 

APPRENTICES. 

In  general,  476. 

see  Master  and  Servant. 


INDEX.  633 

[The  figures  refer  to  pat««.] 

ASSAULT  AND  BATTERY, 

by  husband  on  wife,  55,  57,  73. 

by  wife  on  husband,  64. 

by  either  spouse  as  ground  for  divorce,  192. 

by  parent  on  child,  264. 

by  one  in  loco  parentis,  264. 
by  master  on  servant,  505. 
defense  of  servant  by  master,  and  vice  versa,  50S. 

ASSUMPTION  OP  RISKS, 
by  servant,  519. 

see  Master  and  Servant. 

AVOIDANCE, 

of  marriage,  38. 

jurisdiction  to  annul,  42. 
of  contracts  l)y  infant.  400. 

by  insane  person,  448. 

by  drunlien  person,  460. 
of  transactions  between  parent  and  child,  307. 

between  guardian  and  ward,  364. 
of  guardian's  unauthorized  acts,  344. 

B 

BASTARDS, 

who  are  bastards,  233. 

conflict  of  laws,  237. 

legitimacy  as  affected  by  validity  of  marriage,  28,  2B. 

evidence  of  illegitimacy,  23S. 

presumption,  238. 

status  of  bastards,  246-200. 

custody,  246. 

domicile,  247. 

descent  and  distribution,  247, 

support  and  maintenance,  24». 

BIGAMY, 

effect  of  bigamous  marriage,  28. 

BONDS, 

of  guardian,  353 

BURDEN  OF  PROOF, 
as  to  marriage,  44. 

c 

CANONICAL  DISABILITIES, 

to  marriage,  affinity  and  consanguinity,  28. 
impotence,  26. 

CELEBRATION, 
of  marriage,  31. 


634  INDEX. 

[The  flsures  refer  to  pagM.] 

CHANCERY  GUARDIANS, 

defined,  320. 

see  Guardian  and  Ward- 

CHASTISEMENT, 

of  wife  by  husband,  55,  57,  73,  192. 
of  child  by  parent,  264. 
of  servant  by  master,  505. 

CHATTELS  REAL, 

wife's  chattels  real,  103. 

CHILDREN, 

marriage  of,  20. 

see  Guardian  and  Ward;   Infanta;    Parent  and  Child. 

CHINESE, 

intermarriage  with  white  person,  27. 
see  Aliens. 

CHOSES  IN  ACTION, 

of  wife,  rights  of  husband,  95. 
see  Husband  and  Wife. 

COERCION, 

effect  on  validity  of  marriage,  10,  13,  15. 
of  wife  by  husband,  torts,  64. 
crimes,  59. 
COHABITATION, 

rights  of  husband  and  wife,  63. 
see  Desertion. 

COLLUSION, 

to  procure  a  divorce,  216. 

COMMUNITY  PROPERTY, 
of  husband  and  wife,  112. 

COMPULSION, 

effect  on  validity  of  marriage,  10,  18,  IB. 
of  wife  by  husband,  torts,  64. 
crimes,  59. 

CONDONATION, 

as  a  defense  in  a  suit  for  divorce,  217. 
by  master  of  misconduct  of  servant,  498. 

CONFLICT  OF  LAWS, 

validity  of  marriage,  48. 
as  to  wife's  statutory  separate  estate,  152, 
extraterritorial  effect  of  decree  of  divorce,  226. 
legitimacy  of  children,  237. 

CONJUGAL  RIGHTS, 

suits  for  restitution  of,  53. 
see  Husband  and  Wife. 


INDEX.  636 

[The  fleures  refer  to  pacea.] 

CONNIVANCE, 

as  a  defense  in  a  suit  for  divorce,  213. 

CONSANGUINITY, 

effect  on  validity  of  marriage,  23. 

CONSENT, 

to  marriage,  8. 
CONSIDERATION, 

of  antenuptial  settlement,  168. 

for  emancipation  of  child,  284. 

necessity  of  return  on  rescission  of  contract  by  Infant,  417. 

CONSTITUTIONAL  LAW, 

power  of  Legislature  to  validate  marriages,  43. 
validity  of  married  woman's  acts,  5,  150. 
legislative  divorces,  5,  229. 

CONSTRUCTION, 

of  statutes  relating  to  marriage,  31,  48. 
of  married  woman's  acts,  148-164. 

CONTRACTS  AND  QUASI  CONTRACTS, 
marriage  not  a  contract,  4-8,  152,  230. 
contract  to  marry,  7,  8. 
contracts  of  wife  at  common  law,  115. 
wife  as  a  sole  trader,  120. 
conveyances,  sales,  and  gifts  by  wife,  122. 
contracts  of  husband,  125. 
contracts  by  wife  as  husband's  agent,  125. 

power  to  bind  husband  for  necessaries,  126. 
husband's  liability  for  wife's  funeral  expenses,  137. 
husband's  liability  for  wife's  antenuptial  debts,  138. 
wife's  power  to  charge  her  separate  estate,  equitable  separate  estate,  144. 

statutory  separate  estate,  156. 
antenuptial  settlements  and  contracts,  165. 

marriage  as  a  consideration,  168. 

validity  as  to  creditors,  171. 

reasonableness  of  provisions,  173. 

settlements  based  on  antenuptial  contracts,  174. 

statute  of  frauds,  175. 
postnuptial  settlements  and  contracts,  at  common  law,  177. 

In  equity,  177,  179. 

as  against  creditors  and  purchasers,  181. 
agreements  of  separation  between  husband  and  wife,  184. 
by  child  as  parent's  agent,  259. 
between  parent  and  child,  307. 

parent's  liability  for  necessaries  furnished  child,  251. 
as  to  custody  of  child,  274. 
hiring  by  child,  rights  of  parent,  276. 
emancipation  of  children.  280-286. 


636  INDEX. 

[The  figures  refer  to  pages.] 

CONTRACTS  AND  QUASI  CONTRAGT&— Continued, 
of  guardian,  330,  350,  355,  356,  359. 

liability  for  necessaries  furnished  ward,  330. 
between  guardian  and  ward,  364. 
of  Infants,  386-424. 

void  and  voidable  contracts,  387. 

valid  contracts,  391. 

contracts  for  necessaries,  393. 

ratification  and  disaffirmance,  400-424. 

time  of  avoidance,  403. 

who  may  avoid,  406. 

what  constitutes  ratification,  408. 

what  constitutes  a  disaffirmance,  415. 

extent  of  ratification  or  disaffirmance,  416. 

return  of  consideration,  417. 

effect  of  ratification  or  disaffirmance,  422. 
of  insane  persons,  442-450. 

void  or  voidable,  444. 

valid  contracts,  quasi  contracts,  445. 

contracts  for  necessaries,  445. 

ignorance  and  good  faith  of  the  other  party,  448. 

Insane  persons  under  guardianship,  447. 

ratification  and  avoidance  of  contracts,  448. 

return  of  consideration,  449. 

avoidance  as  to  third  persons,  450. 
of  drunken  persons,  458. 
of  alien  friend,  466. 
of  alien  enemy,  469. 
of  hiring,  see  Master  and  Servant 

CONVERSION, 
see  Torts. 

CONVEYANCES, 

between  parent  and  child,  307. 
by  wife,  122. 

in  equity,  124,  143. 
.   under  modern  statutes,  124,  155. 
see,  also.  Aliens;    Contracts;    Drunken  Persons;    Guardian  and  Ward; 
Infants;   Insane  Persons. 

CORRECTION, 

of  wife  by  husband,  55,  57,  73,  192 
of  child  by  parent,  264. 
of  servant  by  master,  505. 

COURTS. 

jurisdiction  to  annul  marriage,  42. 

jurisdiction  to  grant  divorce,  ISS. 
extraterritorial  effect  of  decree  of  divorce,  226. 
jurisdiction  to  appoint  guardian,  326. 


t 


I 


INDEX.  ^'^ 

[The  figures  reter  to  pages.] 


COVERTURE, 

see  Husband  and  Wife. 

CRIMES, 

of  infants,  435. 

of  insane  person,  452. 

of  drunken  person,  461. 

of  married  women,  59. 

crimes  as  between  husband  and  wife,  62. 

assault  and  battery,  by  husband  on  wife,  55,  87. 

by  parent  on  child,  264. 

by  master  on  servant,  505. 

defense  of  servant  by  master,  and  vice  rerea,  60& 
false  imprisonment  of  wife  by  husband,  5ft. 
crimes  of  child,  liability  of  parent,  262. 

CRIMINAL  CONVERSATION, 
action  by  husband,  85. 
action  by  wife,  87. 

CRIMINAL  LAW, 
see  Crimes. 

CRUELTY, 

as  a  ground  for  divorce,  192. 
condonation,  217. 
recrimination,  221. 

CURTESY, 

defined  and  explained,  103. 

CUSTODY  OF  CHILDREN, 
in  general,  267,  380. 
in  cases  of  divorce,  273. 
agreements  as  to,  274. 
of  illegitimate  children,  246. 
rights  of  guardians,  328. 


D 


DEATH, 

husband's  right  of  action  for  wrongful  death  of  wife,  79. 
right  of  action  for  death  of  child,  297. 

DEEDS, 

see  Aliens;    Contracts;    Drunken  Persons;    Guardian  and  Ward;    liu.s- 
band  and  Wife ;    Infants ;   Insane  Persons  ;   Parent  and  Child. 

DESCENT  AND  DISTRIBUTION, 

inheritance  by  and  from  adopted  children,  244. 
inheritance  by  and  from  illegitimate  children,  247. 

DESERTION, 

right  of  husband  and  wife  to  cohabitation  and  intercourse,  53. 
change  of  domicile  by  husband,  refusal  of  wife  to  follow,  58. 


638  INDEX. 

[The  figures  refer  to  paees.] 
DESERTION— Continued, 

of  wife  by  husband,  effect  on  wife's  power  to  contract,  117. 

effect  on  wife's  power  to  bind  husband  for  necessaries,  132, 
as  ground  for  divorce,  199. 

cessation  of  cohabitation,  200. 

period  of  abandonment,  202. 

return  or  offer  to  return,  203. 

Intention  to  abandon,  203. 

consent  of  abandoned  spouse,  204. 

misconduct  of  abandoned  spouse,  207. 
of  child  by  parent,  251. 

liability  of  parent  for  child's  necessaries,  251. 

as  an  emancipation  of  the  child,  282. 
DISAFFIRMANCE, 

of  marriage,  see  Marriage, 
of  contract,  see  Contracts. 

DIVORCE, 

judicial  separation  or  divorce,  187-229. 
jurisdiction  to  grant,  188. 

dependent  on  domicile,  188. 
extraterritorial  effect  of  decree,  228. 
grounds,  191-213. 
adultery,  191. 
cruelty,  192. 
desertion,  199. 

cessation  of  cohabitation,  200. 

period  of  abandonment,  202. 

return  or  offer  to  return,  203. 

intention  to  abandon,  203. 

consent  of  abandoned  spouse,  204. 

misconduct  of  abandoned  spouse,  207. 
conviction  of  crime  and  imprisonment,  209. 
habitual  drunkenness,  208. 
Insanity,  210. 
nonsupport,  210. 
defenses,  213-226. 
connivance,  213. 
collusion,  216. 
condonation,  217. 

forgiveness  conditional,  217. 

what  amounts  to  condonation,  219. 

knowledge  of  offense,  220. 
recrimination,  221. 

the  conduct  constituting  ground  for  recrimination,  ^^ 

statutes  on  the  subject,  224. 

conduct  condoned,  225. 
legislative  divorces,  4,  5,  229. 


INDEX.  639 

[The  figures  refer  to  pages.] 

DIVORCE — Continued, 

presumption  of  divorce,  44. 

protiibition  against  marriage  by  divorced  person,  29. 
domicile  of  wife  for  purpose  of  suit,  59. 
effect  on  property  riglits,  94,  95. 
maintenance  of  cliildren  after  divorce,  255. 
custody  of  cliildren,  273. 
annulment  of  marriage,  38. 
see  Marriage. 

DOMICILE, 

as  conferring  jurisdiction  of  divorce  proceedings,  18S. 

right  of  liusband  to  determine  family  domicile,  6& 

of  child,  311. 

of  illegitimate  child,  247. 

of  ward,  change  by  guardian,  336. 

DOWER, 

defined  and  explained,  108. 

DRUNKEN  PERSONS, 

intoxication  as  a  ground  for  divorce,  208. 

effect  of  intoxication  on  validity  of  marriage,  18,  1& 

capacity  to  contract,  458. 

liability  for  torts,  461. 

responsibility  for  crime,  461. 

capacity  to  make  a  will,  463. 

DURESS, 

effect  on  validity  of  marriage,  10,  13,  1& 
what  constitutes,  13,  14. 


EARNINGS, 

of  wife,  rights  of  husband,  89. 

effect  of  modern  statutes,  91. 

wife  as  a  sole  trader,  120. 
of  child,  rights  of  parent,  276. 

rights  In  case  of  emancipation,  280. 
of  ward,  rights  of  guardian,  329. 

EDUCATION, 

of  child,  duty  of  parent,  259. 
of  ward,  duty  of  guardian,  330. 

EMANCIPATION, 

of  child,  in  general,  280. 

by  consent  of  parent,  281. 
by  operation  of  law,  282. 
estoppel  of  parent,  283. 


640  INDEX. 

[The  figures  refer  to  pages.] 
EMANCIPATION— Continued. 

consideration,  revocation,  284. 
rights  of  parent's  creditors,  285. 
effect  of,  425. 

EMPLOYER'S  LIABILITY  ACTS, 
in  general,  535. 

ENTICING, 

of  wife,  action  by  liusband,  79. 

of  liusband,  action  by  wife,  83.    • 

of  child,  action  by  parent,  304. 

of  servant,  action  by  master,  53d. 
ENTIRETY,  ESTATE  BY, 

In  general,  109. 

EQUITY, 

jurisdiction  to  annul  marriage,  42. 

wife's  equity  to  a  settlement,  99. 

wife  as  a  sole  trader  in  equity,  120. 

wife's  equitable  separate  estate,  141. 
power  of  disposition,  143. 
power  to  charge  by  contract,  144. 

jurisdiction  over  wife's  statutory  separate  estate,  162. 
ERROR, 

see  Mistake. 

ESTATE  BY  THE  ENTIRETY, 
In  general,  109. 

ESTOPPEL, 

agency  of  wife  for  husband,  127.  i 

of  parent  to  claim  services  and  earnings  of  child,  283.  j 

EVIDENCE, 

of  marriage,  presumptions,  36,  37,  44. 

of  illegitimacy,  238. 

presumption  of  legitimacy,  238. 

EXECUTORS  AND  ADMINISTRATORS, 

husband  as  administrator  of  wife's  estate,  101, 


F 

FALSE  IMPRISONMENT, 
of  wife  by  husband,  56. 

FELLOW  SERVANTS, 

negligence  of,  liability  of  master,  624 
see  Master  and  Servant 


FOREIGNERS, 
see  Aliens. 


INDEX.  641 

[The  figures  refer  to  pages.] 

FOREIGN  GUARDIANS, 
powers,  360. 

FORMALITIES, 

in  the  celebration  of  marriage,  31. 

FRAUD, 

effect  on  validity  of  marriage,  9-12,  15. 
liability  for,  see  Torts. 

FRAUDS,  STATUTE  OF, 

contracts  in  consideration  of  marriage,  175. 
contracts  of  hiring,  484. 

FUNERAL  EXPENSES, 

of  wife,  liability  of  husband,  137. 


GIFTS, 

by  wife  to  husband,  122,  143,  155. 
by  husband  to  wife,  177. 
by  child  to  parent,  307. 
by  parent  to  child,  309. 
by  ward  to  guardian,  3G4. 

antenuptial  and  postnuptial  settlements  between  husband  and  wife,  165 
177. 

GUARDIAI^  AND  WARD, 
guardians  classified,  315. 
natural  guardians,  316. 
guardians  in  socage,  317. 
testamentary  guardians,  318. 
chancery  guardians,  320. 
statutory  guardians,  321. 
quasi  guardians,  321. 

guardians  of  persons  non  compotes  mentis,  322,  441. 
guardians  ad  litem,  323,  383. 
selection  and  appointment  of  guardian  by  court,  323* 

who  may  or  will  be  appointed,  325. 

jurisdiction  to  appoint,  326. 
rights,  duties,  and  liabilities  of  guardians,  328-375. 

custody  of  ward,  328. 

ward's  services  and  earnings,  329. 

action  for  injuries  to  ward,  329. 

maintenance  and  education  of  ward,  330-336. 

contracts  of  guardian  on  behalf  of  ward,  330. 
liability  for  necessaries  furnished  ward,  330. 
use  of  principal  of  estate,  334. 

change  of  ward's  domicile  by  guardian,  336. 

TIFF.P.&  D.Rel.(2d  Ed.)— 41 


642  INDEX. 

[The  figures  refer  to  pages.] 
GUARDIAN  AND  WARD— Continued, 

management  of  estate  by  guardian,  338-359. 
guardianship  as  a  trust,  338-344. 

personal  advantage  from  use  of  ward's  property,  338. 

custody  and  deposit  of  ward's  funds,  318. 

purchase  by  guardian  on  sale  of  ward's  property,  338,  841. 

rights  of  purchasers  from  guardian,  341-343. 
right  of  ward  to  follow  the  trust  property,  342. 
acts  of  guardian  in  excess  of  authority,  344. 
degree  of  care  required,  345. 
collection  and  protection  of  property,  347. 
actions  by  guardian,  347. 
Investments,  350. 
care  of  real  estate,  355. 
sale  of  real  estate,  356. 
sale  of  personal  property,  359. 
power  to  execute  instruments,  359. 
foreign  and  ancillary  guardians,  300. 
Inventory  and  accounts,  361. 
compensation  of  guardian,  363. 
settlements  out  of  court,  364. 
gifts  from  ward,  364. 
termination  of  guardianship,  867. 
majority  of  ward,  367. 
death  of  ward,  367. 
death  of  guardian,  368. 
marriage  of  ward,  368. 
marriage  of  female  guardian,  368t 
resignation,  369. 
removal,  369. 
enforcement  of  guardian's  liability,  371. 
guardian's  bonds,  353. 

H 

HARBORING, 

of  wife,  action  by  husband,  79. 
of  child,  action  by  parent,  304. 
of  servant,  action  by  master,  536. 

HIRING, 

see  Master  and  Servant. 

HUSBAND  AND  WIFE, 

see  Marriage, 
persons  of  spouses  as  affected  by  coverture,  53-88. 
right  to  cohabitation  and  intercourse,  53. 

suits  for  restitution  of  conjugal  rights,  53. 

justification  for  leaving  spouse,  54,  55. 

desertion  as  a  ground  for  divorce,  199. 


INDEX.  W3 

[The  figures  refer  to  pages.] 
HUSBAND  AND  WIFE— Continued, 
restraint  of  wife,  55. 

correction  or  chastisement  of  wife,  55,  57. 
right  to  determine  family  domicile,  58. 

refusal  of  wife  to  follow  husband,  58. 
crimes  of  wife,  59. 

crimes  as  between  husband  and  wife,  62. 
liability  of  husband  for  torts  of  wife,  64. 
torts  arising  out  of  contracts,  68. 
as  affected  by  modern  statutes,  69. 
torts  as  between  husband  and  wife,  73.     ♦ 

effect  of  modern  statutes,  74. 
torts  against  wife,  75-79. 

injury  to  wife,  joint  action,  75. 
Injury  to  husband,  action  by  husband  alone,  77. 
actions  for  enticing,  harboring,  and  alienation  of  affection,  79-84. 
action  by  husband,  80. 
action  by  wife,  83. 
actions  for  criminal  convensation,  85-88. 
action  by  husband,  85. 
action  by  wife,  87. 
rights  in  property  as  affected  by  coverture,  89-114. 
wife's  earnings,  89. 
wife's  personalty  in  possession,  92. 

paraphernalia,  92,  95. 
wife's  choses  in  action,  95. 

reduction  to  possession  by  husband,  97. 
wife's  equity  to  a  settlement,  99. 
administration  by  husband  of  wife's  estate,  lOL 
wife's  chattels  real,  103. 
wife's  estates  of  inheritance,  103. 

husband's  curtesy,  103. 
wife's  estates  for  life,  lOG. 
wife's  rights  in  husband's  property,  108,  109. 
dower,  108. 
thirds,  109. 
estates  by  the  entirety,  109. 
community  property,  112. 
contracts,  conveyances,  and  quasi  contractual  obligations,  11&-140. 
contracts  of  wife  in  general  at  common  law,  115, 

in  equity,  118,  144. 
effect  of  modern  statutes,  118,  156. 
wife  as  a  sole  trader,  92,  106,  120. 
effect  of  modern  statutes,  121. 
conveyances,  sales,  and  gifts  by  wife,  122. 
in  equity,  124,  143. 
under  modern  statutes,  124,  155. 
contracts  of  husband,  125. 


644 


INDEX. 
[The  figures  refer  to  pages.] 


HUSBAND  AND  WIFE — Continued, 

contracts  by  wife  as  husband's  agent,  125-137. 

husband's  liability  for  necessaries  furnished  wife,  12&-137. 
what  are  necessaries,  135. 
husband's  liability  for  wife's  funeral  expenses,  137. 
husband's  liability  for  wife's  antenuptial  debts,  138. 
wife's  equitable  separate  estate,  107,  141. 
power  of  disposition,  143. 
power  to  charge  by  contract,  144. 
wife's  statutory  separate  estate,  107,  148. 

distinguished  from  equitable  separate  estate,  149. 
construction  and  effect  of  statutes,  149. 
conflict  of  laws,  152. 
what  constitutes,  153. 
management  and  control,  154. 
constitutionality  of  statutes,  150. 
retrospective  operation  of  statutes,  150. 
power  of  disposition,  155. 
power  to  charge  by  contract,  156. 
for  debts  of  husband,  161. 
antenuptial  settlements  and  contracts,  165. 
marriage  as  a  consideration,  168. 
validity  as  to  creditors,  171. 
reasonableness  of  provisions,  173. 
settlements  based  on  antenuptial  contracts,  174. 
statute  of  frauds,  175. 
postnuptial  settlements  and  contracts,  at  common  law,  177. 
in  equity,  177,  179. 

as  against  creditors  and  purchasers,  181. 
agreements  of  separation,  184. 
divorce  or  judicial  separation,  187-229. 
jurisdiction  to  grant,  188. 

dependent  on  domicile,  188. 
grounds  for  divorce,  191-213. 
adultery,  191. 
cruelty,  192. 
desertion,  199. 

cessation  of  cohabitation,  200. 
period  of  abandonment,  202. 
return  or  offer  to  return,  203. 
Intention  to  abandon,  203. 
consent  of  abandoned  spouse,  204. 
misconduct  of  abandoned  spouse,  207. 
nabitual  drunkenness,  208. 
conviction  of  crime  and  imprisonment,  209. 
Insanity,  210. 
nonsupport,  210. 


INDEX.  645 

[The  figures  refer  to  pages.] 

HUSBAND  AND  WIFE— Continued, 
defenses,  213-226. 
connivance,  213. 
collusion,  216. 
condonation,  217. 

forgiveness,  conditional,  217. 
what  amounts  to  condonation,  219. 
knowledge  of  offense,  220. 
recrimination,  221. 

the  conduct  constituting  ground  for  recrimination,  222. 
statutes  on  the  subject,  224. 
conduct  condoned,  225. 
extraterritorial  effect  of  decree  of  divorce,  226. 
legislative  divorce,  229. 
rights  as  to  children,  see  Parent  and  Child. 

I 

IDIOTS, 

see  Insane  Persons. 

ILLEGITIMATE  CHILDREN, 

see  Bastards. 

IMBECILES, 

see  Insane  Persons. 

IMPOTENCE, 

effect  on  validity  of  marriage,  26. 
as  ground  for  divorce,  211. 

INDEPENDENT  CONTRACTORS, 

distinguished  from  servants,  547. 

liability  of  employer  for  acts  and  omissions  of,  MT* 

INDIANS, 

marriage  with  white  person,  27. 

INFANTS, 

infancy  defined,  379. 
custody  and  protection,  380. 
privileges  and  disabilities  in  general,  381. 
capacity  to  hold  office,  382. 
capacity  to  sue  and  defend,  383. 
capacity  to  make  a  will,  383. 
competency  as  witnesses,  385. 
contracts  of  infants,  386-424. 

void  and  voidable  contracts,  387. 

valid  contracts,  391. 

contracts  for  necessaries,  393. 

ratification  and  disaffirmance,  400. 

time  of  avoidance,  403. 

who  may  avoid,  406. 


646  INDEX, 

[The  figures  refer  to  pages.] 

INFANTS— Continued, 

what  constitutes  a  ratification,  408. 

what  constitutes  a  disaflirmance,  415. 

extent  of  ratification  or  disaflarmance,  416w 

return  of  consideration,  417. 

effect  of  ratification  or  disaffirmance,  422. 
removal  of  disabilities,  425. 
responsibility  for  crime,  435. 
torts  against  infants,  action  by  Infant,  426. 

action  by  parent,  see  Parent  and  Child- 
liability  of  infants  for  torts,  430. 

torts  connected  with  contract,  433. 
marriage  of  infants,  20. 

construction  of  statutes,  47. 
emancipation,  see  Parent  and  Child, 
liability  of  parent  for  acts  of,  see  Parent  and  Child, 
rights,  duties,  and  lial)ilities  of  parents  and  of  children,  see  Parent  and 

Child, 
guardianship,  see  Guardian  and  Ward. 

INFORMAL  MARRIAGE, 
in  general,  31. 

INQUISITION, 

to  determine  sanity  or  insanity,  440. 

INSANE  PERSONS, 

insanity  defined,  various  kinds,  438. 
mode  of  ascertaining  insanity,  440. 
custody  and  support,  441. 
guardianship  of  insane  persons,  322,  441. 
contracts  of  insane  persons,  442-450. 

void  or  voidable,  444. 

valid  contracts,  quasi  contracts,  445. 

contracts  for  necessaries,  445. 

ignorance  and  good  faith  of  the  other  party,  446. 

insane  persons  under  guardianship,  447. 

ratification  and  avoidance  of  contracts,  448. 

return  of  consideration,  449. 

avoidance  as  to  third  persons,  450. 
liability  for  torts,  451. 
responsibility  for  crime,  452-456. 

inability  to  distinguish  between  right  and  wrong,  453. 

insane  delusions,  454. 

irresistible  impulse,  455. 

moral  and  emotional  insanity,  455. 

Insanity  after  commission  of  crime,  456. 
capacity  to  make  a  will,  456. 
marriage  of,  16. 


INDEX.  641 

[The  figures  refer  to  pages.] 

INSANITY, 

as  ground  for  divorce,  210. 

INTERCOURSE, 

rights  of  husband  and  wife,  53. 

INTOXICATING  LIQUORS, 

furnishing  liquor  to  child,  298. 

INTOXICATION, 

as  ground  for  divorce,  208. 

effect  on  validity  of  marriage,  16,  18. 

status  of  Intoxicated  persons  generally,  see  Drunken  Persons^ 


JURISDICTION, 

to  annul  marriage,  42. 
to  appoint  guardian,  328. 
to  grant  divorce,  188. 

L 

LARCENY, 

by  wife  or  husband  from  other  spouse,  62. 

LAWS, 

see  Statutes. 

LEGISLATIVE  DIVORCE, 
not  unconstitutional,  5,  229. 

LEGITIMACY, 

of  children,  233-242. 

as  affected  by  validity  of  marriage,  28,  2& 

conflict  of  laws,  237. 
evidence  of  legitimacy,  238. 
presumption,  238. 
illegitimate  children,  see  Bastards. 

LIBEL, 

of  servant  by  master,  506. 
see  Torts. 

LICENSE, 

to  marry,  necessity,  32,  46. 

LUNATICS, 

see  Insane  Persons. 


M 


MAINTENANCE, 

of  wife  by  husband,  126. 
of  child  by  parent,  251. 
of  bastards,  249. 


648  INDEX. 

[The  figures  refer  to  pages.] 
MAINTENANCE— Continued, 

of  parent  by  child,  311. 

of  ward  by  guardian,  330-336w 

MARRIAGE, 
defined,  4. 
as  a  status,  4. 

distinguished  from  contract,  4-8. 
agreement  to  marry,  5,  6. 

legislation  impairing  obligation  of,  4,  5,  229,  280. 
essentials  of  marriage,  7-38. 
mutual  consent,  8. 

marriage  in  jest,  9. 
fraud,  9-12. 
duress,  10,  13,  15. 
error  or  mistake,  10,  14,  15. 
mental  incapacity,  16-23. 
insanity,  16. 
intoxication,  16,  18. 
nonage,  20. 

capacity  of  parties  otherwise  than  mentally,  23-30.  ^H 

relationship,  consanguinity,  and  affinity,  23.  ■! 

physical  incapacity  or  impotence,  26. 
civil  conditions,  race,  etc.,  27. 
prior  marriage,  28. 
slave  marriages,  28. 

formalities  in  celebration  of  marriage,  31-38. 
Informal  marriages,  31. 

per  verba  de  praesenti,  31. 
per  verba  de  future  cum  copula,  31. 
effect  of  statutory  requirements,  31,  46. 
license,  32,  46. 

publication  of  banns,  32,  46. 
consent  of  parents,  32,  46. 
registration,  32,  46. 

qualification  of  person  performing  ceremony,  32,  4S. 
annulment  and  avoidance  of  marriage,  38. 

jurisdiction,  42. 
power  of  Legislature  to  validate  marriages,  43. 
presumption  and  burden  of  proof  as  to  marriage,  44. 
construction  of  statutory  provisions,  32,  46. 
conflict  of  laws,  48. 

between  Indians  in  tribal  relations,  51. 
prohibition  against,  in  case  of  divorce,  29. 
of  ward,  effect  on  guardianship.  3G8. 
of  female  guardian,  effect  on  guardianship,  368. 
as  a  consideration  for  antenuptial  contract,  168 
effect  of  marriage,  see  Husband  and  Wife. 


INDEX.  649 

[The  figures  refer  to  pages.] 

MARRIAGE  SETTLEMENTS, 
see  Husband  and  Wife. 

MARRIED  WOMEN, 

see  Husband  and  Wife. 

MASTER  AND  SERVANT, 
the  relation  defined,  475. 
apprentices,  476. 
hired  servants,  477. 
statutory  regulation,  478. 
creation  of  the  relation,  479. 
implied  contract,  480. 
validity  of  contract,  482. 
statute  of  frauds,  484. 
termination  of  the  relation,  485. 

discharge  of  contract  by  agreement,  485. 
happening  of  conditions  subsequent,  486. 
performance,  489. 
breach  of  contract,  490-497. 
breach  by  master,  490. 

wrongful  discharge,  490. 
ill  treatment,  491. 
breach  by  servant,  justifying  discharge,  492-497. 
incompetency,  493. 
intoxication,  493. 
criminal  or  immoral  conduct,  494. 
disobedience,  494. 
neglect  of  duties,  494. 

Injury  to  master's  business,  496.  • 

engaging  in  similar  business,  496. 
condonation  or  waiver  of  breach,  496. 
motive  of  master  in  discharging  servant,  497. 
Impossibility  of  performance,  497. 
remedies  for  breach  of  contract,  damages,  500. 

specific  performance  and  injunction,  504. 
rights,  duties,  and  liabilities  inter  se,  505. 
correction  of  servant,  505. 
giving  servant  a  character,  506. 

slander  or  libel,  506. 
right  to  entire  time  of  servant,  507. 
liability  of  servant  for  neglect,  507. 
conspiracy  between  servants,  507. 
defense  of  servant  by  master,  and  vice  versa,  508. 
the  right  to  wages,  508. 

master's  liability  for  injuries  to  servant,  510-536. 
master's  duty,  510. 
tools,  appliances,  etc.,  511. 


630  INDEX. 

[The  figures  refer  to  pages.] 

MASTER  AND  SERVANT— Continued, 
inspection,  513. 
place  for  work,  513. 
methods  of  worli,  515. 
promulgation  of  rules,  515. 
competency  of  fellow  servants,  515. 
eufBcient  number  of  fellow  servants,  515, 
warning  and  instructing  servants,  516. 
degree  of  care  required,  517. 
delegation  of  duty,  519. 
assumption  of  risks  by  servant,  519. 
negligence  of  fellow  servants,  524. 
employer's  liability  acts,  535. 
rights  of  master  against  third  persons,  536. 
injury  to  servant,  536. 
enticing  or  harboring  servant,  536. 
rights  of  servant  against  third  persons,  539. 

procuring  discharge  of  servant,  539. 
master's  liability  to  third  persons  for  acts  or  omissions  of  servant,  540 
on  contracts  of  servant,  540. 
for  servant's  torts,  540. 

relationship  of  parties,  545.  • 

Independent  contractors,  547. 
servant's  liability  to  third  persons,  550. 

MENTAL  CAPACITY, 

see  Drunken  Persons;   Infants;    Insane  Persons. 
MINORS, 

see  Infants ;   Parent  and  Child. 

MISCEGENATION, 

prohibited  marriages  between  races,  27. 
MISTAKE, 

effect  on  validity  of  marriage,  10,  14,  15. 

MUTUAL  CONSENT, 
to  marriage,  8. 

N 

NATURAL  CHILD, 
see  Bastards. 

NATURAL  GUARDIANS, 
defined,  316. 

NATURALIZATION, 
of  aliens,  470. 

NECESSARIES, 

fui-nished  wife,  liability  of  husband.  126. 
what  are  necessaries,  l35. 


INDEX.  651 

[Th«  flKures  refer  to  pag«&.] 

NEXiJESSARIES— Continued, 

furnished  cliild,  iiability  of  parent,  251. 
furnished  ward,  liability  of  guardian,  330. 
liability  of  infants,  393. 
liability  of  insane  persons,  445, 
liability  of  drunken  persons,  458» 

NEGLIGENCE, 

see  Master  and  Servant ;  Torts. 

NEGRO, 

marriage  with  white  person,  27. 

NONAGE, 

see  Infants. 

NON  COMPOS  MENTIS, 

see  Drunken  Persons ;  Insane  Persons. 

NONSUPPORT, 

as  ground  for  divorce,  210. 


PARAPHERNALIA, 
of  wife,  92,  95. 

PARENT  AND  CHILD, 

legitimacy  of  children,  233-242. 

conflict  of  laws.  237. 

evidence  of  illegitimacy,  238. 

presumption,  238. 
status  of  illegitimate  children,  246 

custody,  246. 

domicile,  247. 

descent  and  distribution,  247. 

support  and  maintenance,  249. 
adoption  of  children,  242. 

status  of  adoptive  parent  and  child,  243. 

descent  and  distribution,  244. 
duties  and  liabilities  of  parents,  251-262. 

duty  to  maintain  child,  251. 

liability  for  necessaries  furnished  child,  251- 
maintenance  in  equity,  allowance  from  child's  estate,  257. 

duty  to  protect  child,  258. 

duty  to  educate  child,  259. 

contracts  by  child  as  parent's  agent,  259. 

liability  for  child's  torts,  260. 

liability  for  child's  crimes,  262. 
rights  of  parent  and  of  child,  263-312. 

in  general,  2(S. 

correction  of  child,  264. 


652  INDEX. 

[The  figures  refer  to  pages.] 

PARENT  AND  CHILD— Continued, 
custody  of  child,  267. 

In  cases  of  divorce,  273. 

agreements  as  to  custody,  274. 
right  to  child's  services  and  earnings,  278. 
emancipation  of  children,  280-286. 

in  general,  280. 

by  consent  of  parent,  281. 

by  operation  of  law,  282. 

estoppel  of  parent,  283. 

consideration,  revocation,  284. 

effect  in  general,  425. 

rights  of  parent's  creditors,  285. 
actions  by  parent  for  injuries  to  child,  286-298, 

in  general,  286. 

loss  of  services  of  child,  288. 

expenses  incurred  by  reason  of  the  Injury,  289. 

necessity  to  show  loss  of  services,  290. 

other  elements  of  damage,  295. 

remote  and  proximate  cause,  296. 

adult  children,  296. 

who  may  sue,  296. 

action  for  death  of  child,  297. 

furnishing  liquor  to  child,  298. 
action  by  parent  for  seduction  or  debauching  of  daughter,  299. 

statutory  action,  303. 
action  by  parent  for  abducting,  enticing,  or  harboring  child,  304. 
parent's  rights  in  child's  property,  306. 

gifts,  conveyances,  and  contracts  between  parent  and  child,  307. 
advancements  by  parent  to  child,  309. 
duty  of  child  to  support  parent,  311. 
domicile  of  child,  311. 

marriage  of  infants,  20. 

consent  of  parent,  32,  46. 
liability  of  parent  for  enticing  or  harboring  married  child,  81. 
status  of  Infants,  see  Infants. 

PARTIES, 

Infants  as  parties  to  actions,  383. 

PERSONAL  INJURIES, 

see  Husband  and  Wife ;   Master  and  Servant ;  Parent  and  Child. 

PHYSICAL  CAPACITY, 
to  marry,  26. 

POLYGAMY, 

effect  of  bigamous  marriage, 


INDEX.  653 

[Tlie  figures  refer  to  pages.] 

POSTNUPTIAL  SETTLEMENTS, 

between  husband  and  wife,  at  common  law,  177. 
in  equity,  177,  179. 
as  against  creditors  and  purchasers,  181. 

PRESUMPTIONS, 

of  marriage  in  general,  36,  37. 

as  to  marriage  and  legitimacy  of  children,  44,  238L 

of  divorce  from  or  death  of  former  spouse,  44. 

PRINCIPAL  AND  AGENT, 

wife  as  husband's  agent,  125. 
child  as  parent's  agent,  259. 
see  Master  and  Servant. 

PRIOR  MARRIAGE, 

effect  on  validity  of  marriage,  28. 

Q 

QUASI  CONTRACT, 

see  Contracts  and  Quasi  Contracts. 

QUASI  GUARDIANS, 
defined,  321. 

see  Guardian  and  Ward. 

R 

RACE, 

prohibited  marriage  between  races,  27. 

RAPE, 

husband  as  accessory,  62. 

RATIFICATION, 

of  voidable  marriage,  15,  19. 
of  agency  of  wife,  128. 
of  contract  by  infant,  400-424. 
what  constitutes,  408. 

RECRIMINATION, 

as  a  defense  In  a  suit  for  divorce,  221, 

REDUCTION  TO  POSSESSION, 

of  wife's  choses  in  action  by  husband,  OT* 
REGISTRATION, 

of  marriage,  32,  46. 

RELATIONSHIP, 

effect  on  validity  of  marriage,  23. 

REMOVAL, 

of  guardian,  369. 

RESIDENCE, 

see  Domicile. 


654  INDEX. 

[The  figures  refer  to  pages.] 

RESIGNATION, 

of  guardian,  369. 

RESPONDEAT  SUPERIOR, 

master's  liability  for  acts  or  omissions  of  servant,  640t 

RESTITUTION, 

of  conjugal  rights,  suits  for,  53. 

RESTRAINT, 

of  wife  by  husband,  55. 

REVOCATION, 

of  emancipation  of  child,  284. 


s 

SEDUCTION, 

of  wife,  action  by  husband,  85. 
of  daughter,  action  by  parent,  299. 
statutory  action,  303. 

SEPARATE  ESTATE, 

wife's  equitable  separate  estate,  107,  141. 
wife's  statutory  separate  estate,  107,  148. 

equitable  and  statutory  separate  estates  distinguished,  149L 

what  constitutes,  153. 

management  and  control,  154. 

power  to  convey,  155. 

power  to  charge,  156. 

SEPARATION, 

separation  agreements  between  husband  and  wife,  184. 
judicial  separation,  see  Divorce. 

SERVANTS, 

see  Master  and  Servant 

SERVICES, 

of  wife,  rights  of  husband,  89. 
of  child,  rights  of  parent,  276. 
of  ward,  rights  of  guardian,  329. 
see  Master  and  Servant 

SLANDER, 

of  servant  by  master,  50S. 
see  Torts. 

SLAVES, 

marriage  of,  28. 

no  slavery  In  the  United  States,  478. 

SOCAGE, 

guardians  in  socage,  317. 

see  Guardian  and  Ward. 


INDEX.  655 

[The  figures  refer  to  pages.] 

SOLE  TRADER, 

wife  as  a  sole  trader,  92,  106,  120. 
effect  of  moderu  statutes,  121. 

STATES, 

power  of  Legislature  to  validate  marriages,  43. 
power  of  Legislature  to  grant  divorces,  229. 

STATUTE  OF  FRAUDS, 
see  Frauds,  Statute  of. 

STATUTES, 

effect  of  statutory  requirements  as  to  marriage,  81,  40. 

relating  to  marriage,  construction,  46. 

power  of  Legislature  to  validate  marriage,  43. 

legislative  divorces,  5,  229. 

married  women's  property  acts,  14S-164. 

SUPPORT, 

see  Maintenance. 


TESTAMENTARY  GUARDIANS, 
defined,  318. 

see  Guardian  and  Ward. 

TORTS, 

liability  of  married  women,  64. 

torts  arising  out  of  contracts,  68. 

as  affected  by  modern  statutes,  69. 
husband's  liability  for  torts  of  wife,  64. 

torts  arising  out  of  contracts,  68. 

as  affected  by  modern  statutes,  69. 
as  between  husband  and  wife,  73. 

effect  of  modern  statutes,  74. 
against  wife,  75-79. 

action  by  husband  for  enticing  or  harboring  wife,  79. 
action  by  wife  for  enticing  or  harboring  husband,  83. 
action  by  husband  for  alienating  affections  of  wife,  79. 
action  by  wife  for  alienating  affections  of  husband,  83. 
actions  for  criminal  conversation,  85. 
action  by  parent  for  injuries  to  child,  286. 

action  by  parent  for  abducting,  enticing,  or  harboring  child,  304. 
action  by  parent  for  seduction  or  debauching  of  daughter,  299. 
action  by  guardian  for  injuries  to  ward,  329. 
action  by  infant  for  tort,  426. 
liability  of  parent  for  torts  of  child,  260. 
liability  of  Infants,  430. 
liability  of  insane  persons,  451. 
liability  of  drunken  persons,  461. 


656  INDEX. 

[The  Dgures  refer  lo  pages.] 

TORTS— Continued, 

action  by  master  for  Injuries  to  servant,  536. 
action  by  servant  for  causing  liis  disctiarge,  539. 
liability  of  master  for  torts  of  servant,  540. 
liability  of  master  to  servant  for  negligence,  510. 
liability  of  servant  for  his  own  torts,  550, 

TRESPASS, 
see  Torts. 


VOID  AND  VOIDABLE  CONTRACTS, 

see  Contracts. 

VOID  AND  VOIDABLE  MARRIAGES, 
see  Marriage. 


WAGES, 

see  Master  and  Servant 

WARD, 

see  Guardian  and  Ward. 

WILLS, 

of  infants,  383. 

of  insane  persons,  456. 

of  drunlien  persons,  463. 

WITNESSES, 

competency  of  infants,  385. 

WRONGS, 
see  Torts. 


m 


mar  FUBLiBHiNe  oo.,  rsiNTSBs,  bt.  rAUL,  xnni. 


SCHOOL  OF  LAW  LIBRARY 


,^{1;  SOUTHERfJ  REGIONAL  LIBRARY  -ACUITY 


-7/ 


f  ,•:-  -^ 


